•IRKIlIf 

LIBRARY 

UNIVERSITY  OP 
CALKORNIA 


THE  MODERN   LEGAL  PHILOSOPHY 
SERIES 


General  Theory  of  Law 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


INTRODUCTION  TO  THE  SCIENCE  OF  LAW.  By  KARL 
GAREIS  of  the  University  of  Munich.  Translated  by  ALBERT 
KOCOUREK  of  Northwestern  University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  FRITZ  BEROLZ- 
HEIMER  of  Berlin.  Translated  by  RACHEL  S.  JASTROW. 

COMPARATIVE  LEGAL  PHILOSOPHY,  applied  to  Legal 
Institutions.  By  LUIGI  MIRAGLIA  of  the  University  of 
Naples.  Translated  by  JOHN  LISLE  of  L'IC  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  KORKUNOV  of  the 
University  of  St.  Petersburg.  Translated  by  W.  G.  HASTINGS 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.     By  RUDOLF  VON  IHERING 
of  the  University  of  Berlin.     Translated  by  ISAAC  HUSIK  of 
.     the  University  of  Pennsylvania. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A.  FOUILLEE, 
J.  CHARMONT,  L.  DUGUIT  and  R.  DEMOGUE  of  the  Uni- 
versities of  Paris,  Montpellier,  Bordeaux  and  Lille.  Trans- 
lated by  MRS.  F.  W.  SCOTT  and  JOSEPH  P.  CHAMBERLAIN. 

SCIENCE  OF  LEGAL  METHOD,  SELECT  ESSAYS.  By 
Various  Writers. 

THE  FORMAL  BASES  OF  LAW.  By  G.  DEL  VECCHIO  of  the 
University  of  Bologna.  Translated  by  JOHN  LISLE  of  the 
Philadelphia  Bar. 

THE  PHILOSOPHY  OF  LAW.  By  JOSEF  KOHLER  of  the  Uni- 
versity of  Berlin.  Translated  by  ADALBERT  ALBRECHT. 


Modern  Legal  Philosophy  Series:  IV 

GENERAL    THEORY 
OF    LAW 


BY 
N.  M.  KORKUNOV 

LATE   PROFESSOR   OF   PUBLIC   LAW 
UNIVERSITY    OF    ST.    PETERSBURG 


ENGLISH   TRANSLATION 

BY 

W.  G.  HASTINGS 

DEAN  OP  THE  LAW  FACULTY,  UNIVERSITY  OF  NEBRASKA 


SECOND  EDITION 


flew 

THE   MACMILLAN  COMPANY 
1922 

All  rights  reserved 


PRINTED  IN   THE    UNITED   STATES  OF  AMERICA 


' 

LOAN  STACK 


/    • 


COPYRIGHT,  1909, 
BY  THE  MACMILLAN  COMPANY 

New  edition  with  corrections  January,  1922. 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


MORRIS  R.  COHEN,  Professor  of  Philosophy,  College  of  the  City  of 
New  York. 

JOSEPH  H.  DRAKE,  Professor  of  Law,  University  of  Michigan. 
ALBERT  KOCOUREK,  Professor  of  Law,  Northwestern  University. 
ERNEST  G.  LORENZEN,  Professor  of  Law,  Yale  University. 
FLOYD  R.  MECHEM,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  POUND,  Professor  of  Law,  Harvard  University. 
ARTHUR  W.  SPENCER,  Brookline,  Mass. 

JOHN  H.  WIGMORE,   Chairman,  Professor  of  Law,   Northwestern 
University. 


LIST  OF  TRANSLATORS 

ADALBERT  ALBRECHT,  South  Easton,  Mass. 

ERNEST  BRUNCKEN,  Washington,  D.  C. 

JOSEPH  P.  CHAMBERLAIN,  Columbia  University. 

WM.  G.  HASTINGS,  Professor  of  Law,  University  of  Nebraska. 

ISAAC  HUSIK,  Professor  of  Philosophy,  University  of  Pennsylvania. 

RACHEL  SZOLD  J  ASTRO w,  Madison,  Wis. 

ALBERT  KOCOUREK,  Chicago,  111.  (of  the  Editorial  Committee). 

JOHN  LISLE,  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 

MARTHA  Me.  READ,  Washington,  D.  C. 

ETHEL  FORBES  SCOTT,  Urbana,  111. 

JOHN  SIMPSON,  New  York,  N.  Y.  (of  the  New  York  Bar). 


C54 


GENERAL  INTRODUCTION  TO 
THE  SERIES 

BY  THE  EDITORIAL  COMMITTEE 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was  loath 
to  give  forth  this  view,  because,  as  he  admitted,  it  might 
"sink  him  beneath  the  waters  of  laughter  and  ridicule," 
so  to-day  among  us  it  would  doubtless  resound  in  folly 
if  we  sought  to  apply  it  again  in  our  own  field  of  State 
life,  and  to  assert  that  philosophers  must  become  lawyers 
or  lawyers  philosophers,  if  our  law  is  ever  to  be  advanced 
into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legat  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  De  Tocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


viii  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is,  after 
all,  only  the  science  of  general  ideas — analyzing,  restat- 
ing, and  reconstructing  concrete  experience — we  may 
well  trust  that  (if  ever  we  do  go  at  it  with  a  will)  we  shall 
discover  in  ourselves  a  taste  and  high  capacity  for  it, 
and  shall  direct  our  powers  as  fruitfully  upon  law  as  we 
have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others.  Our 
historic  bond  with  English  law  alone,  and  our  conse- 
quent lack  of  recognition  of  the  universal  character  of 
law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law.  Phi- 
losophy of  law  has  been  to  us  almost  a  meaningless  and 
alien  phrase.  "All  philosophers  are  reducible  in  the 
end  to  two  classes  only:  utilitarians  and  f utilitarians, " 
is  the  cynical  epigram  of  a  great  wit  of  modern  fiction.1 
And  no  doubt  the  philistines  of  our  profession  would 
echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine — a  phi- 
losophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

1  M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL   INTRODUCTION  ix 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910: — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad — to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kuhn  v.  Fair- 


x  GENERAL   INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting: — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where. The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final  solu- 
tion of  any  philosophical  or  juristic  problems;  nor  to 
follow  any  preference  for  any  particular  theory  or  school 
of  thought.  Its  chief  purpose  has  been  to  present  to 
English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation; but  the  selection  has  not  been  centered  on  the 


GENERAL   INTRODUCTION  xi 

notion  of  giving  equal  recognition  to  all  countries.  Pri- 
marily, the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the  Gary 
Library  of  Continental  Law  (in  Northwestern  University). 

In  the  researches  of  preparation  for  this  Series,  those 
materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 


xii  GENERAL  INTRODUCTION 

a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar  way 
be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  of  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


TABLE  OF  CONTENTS 


Pages 

1.  General  Introduction  to  the  Series vii 

2.  Translator's  Preface xxi 

3.  Translator's  Preface  to  the  Second  Edition xxvii 

INTRODUCTORY  CHAPTER 1-39 

Section  1.     Necessity  for  Generalized  Knowledge 1-8 

Encyclopedism  and  philosophic  generalization,  3. 
Special  need  of  generalized  science  in  the  study  of 
law,  5. 

Section  2.     Encyclopedia  of  Law 9-22 

Meaning  of  word  encyclopedia,  9.  Beginnings  of 
encyclopedia  of  law,  10.  Encyclopedia  in  17th  and 
18th  centuries,  11.  Insufficiency  of  encyclopedia  as 
brief  outline  of  special  sciences,  12.  Hegel's  and  Schel- 
ling's  views,  13.  Encyclopedia  in  first  half  of  19th 
century,  15.  Latest  German  encyclopedia  of  law,  17. 
Russian  juridical  encyclopedia,  20.  Encyclopedia  in 
other  literatures,  22. 

Section3.     Philosophy  of  Law 23-30 

Philosophy  as  science  of  extremest  generalization,  23. 

\  Teaching  as  to  natural  law,  24.  Most  recent  philosophy 
of  law,  28.  Insufficiency  of  philosophy  as  special  science 
of  the  highest  generality,  29. 

Section  4.     General  Theory  of  Law 31-39 

General  theory  and  philosophy,  31.  Views  of  Schutze, 
32.  Identifying  general  science  with  encyclopedia,  34. 
Views  of  Zveriov,  34.  Muller's  definition  of  the  general 
purpose  in  teaching  law,  36.  Post's  definition,  37. 
General  tendencies  of  Russian  legal  encyclopedia  to- 
wards a  general  theory  of  law,  38. 

BOOR  I 

CONCEPTIONS  OP  LAW 40-165 

CHAPTER  I.     DEFINITION  OF  LAW 40-78 

Section  5.     Technical  and  Ethical  Norms 41-46 

Conception  of  norms  as  necessary  rules,  41.  Technical 
and  ethical  norms,  42.  Their  differences,  how  material 
and  how  formed,  43.  Relativity  of  obligation  of  tech- 


xiv  TABLE   OF  CONTENTS 

Section  5  —  Continued.  Pages 

nical  norms  and  absoluteness  of  ethical  ones,  44.  Differ- 
ence in  content  of  these  and  other  norms,  45. 

Section  6.     Juridical  Norms  and  Moral  Norms 47-54 

Moral  norms,  rules  for  evaluing  interests,  48.  Subjec- 
tivity of  moral  valuations,  49.  Two  possible  types  of 
co-ordinated  interests,  51.  Legal  rules  as  norms  for 
limiting  interests,  52.  Difference  between  moral  and 
legal  rules,  53. 

Section  7.     Relationship  of  Law  and  Morals 55-64 

Opposition  of  law  and  morals,  55.  Their  mutual  con- 
nection, 58.  Hegel's  and  Ahrens'  views,  60.  Jellinek's 
and  Wallaschek's  views,  61.  Necessary  correlation  of 
law  and  morals,  63. 

Section  8.     "Law"  in  the  Legal  and  in  the  Scientific  Sense        65-71 
Notion  of  law  in  the  scientific  sense,  65.     Do  legal  rules 
fill  the  place  of  laws  of  nature?  67.     Whether  juridical 
norms  represent  the  popular  conception  of  natural  laws, 
68.     Correlation  of  legal  rules  and  natural  laws,  70. 

Section  9.     Relativity  of  Law 72-78 

Relativity  of  laws  as  phenomena,  73.  Gradual  recog- 
nition of  the  relativity  of  laws,  75.  Importance  of  such 
recognition,  77. 


CHAPTER  II.    LEADING  DIFFERENT  CONCEPTIONS  OF 

LAW 79-115 

Section  10.  The  Definition  of  Law  by  What  it  Embraces. . .  79-85 
Capital  differences  between  definitions  of  law,  79. 
Causes  of  variances  in  the  contents  of  law,  80.  Lead- 
ing different  definitions  of  law  by  its  contents,  81.  Defi- 
nition of  law  as  norms  of  freedom,  82.  Its  connection 
with  individualism,  83. 

Section  11.     Definition  of  Law  by  its  Source 86-93 

Causes  for  the  popularity  of  such  definitions,  86.  Defi- 
nition of  legal  norm  as  commands  of  governmental 
power,  90.  Criticism  of  this  definition,  91.  Definition 
of  legal  rules  as  social  norms,  92. 

Section  12.     Definition  of  Law  as  Coercive  Norms 94-103 

Connection  of  this  definition  with  dualistic  world  con- 
cepts, 94.  Objections  against  the  possibility  of  such  a 
definition,  96.  Impossibility  of  a  purely  coercive  basis. 
Necessity  of  popular  assent,  97.  Psychical  coercion, 
101.  Importance  of  coercion  with  regard  to  law,  102. 

Section  13.     Formal  and  Utilitarian  Conceptions 104-115 

Historical  and  theoretical  basis  for  the  formal  theory  of 
law,  104.  Reaction  against  this  theory  on  the  part  of 


TABLE  OF  CONTENTS  xv 

Section  13  —  Continued.  Pages 

the  school  of  the  organic  theory,  106.  Ihering's  doctrine, 
107.  Insufficiency  of  his  definition,  109.  Mourom- 
tzev's  definition,  113.  Criticism  of  this  definition,  114. 


CHAPTER  III.    HYPOTHESIS  OF  NATURAL  LAW.  .     116-138 

Section  14.     General  Characteristics 116-122 

Variableness  of  legal  rules  together  with  their  inde- 
pendence of  human  wills,  116.  Essentially  historical 
conceptions,  the  cause  of  the  ruling  theory  of  natural 
law,  118.  Idea  of  a  legally  ordered  historical  develop- 
ment of  law,  118.  Incomplete  expression  of  this  idea 
in  the  doctrines  of  the  historical  school,  119. 

Section  15.     Natural  Law  in  the  Roman  Jurists 123-128 

Peculiarity  on  the  views  of  the  Roman  jurists,  123. 
Legal  rules  arising  from  the  nature  of  man,  things  and 
relations,  124.     Criticism  of  preceding  examples,  126. 

Section  16.     Later  Theories  of  Natural  Law 129-133 

Criticism  of  the  Rationalist  theory  of  natural  law,  129. 
Criticism  of  the  empiricist  theory,  131.  Theory  of  the 
19th  Century,  132. 

Section  17.  General  Criticism  of  the  Idea  of  Natural  Law. .     134-138 
Appearance  of  truth  in  natural  law  idea,  a  popular  de- 
lusion, 134.     Apparent  transfer  of  some  rules  to  the 
natural  law  category,  135.     Historical  importance  6T~ 
the  conception  of  natural  law,  137. 


CHAPTER  IV.    ORIGIN  OF  LAW 139-165 

Section  18.     Theory  of  the  Voluntary  Establishment  of  Law,     139-142 
Apparent  origin  of  law  by  command  of  government,  139. 
Contract  theory,  141. 

Section  19.     Doctrine  of  the  Historical  School 143-156 

Views  of  Gustave  Hugo,  143.  Doctrine  of  Savigny,  146. 
Doctrine  of  Puchta,  153. 

Section  20.     The  Origin  of  Law 157-161 

Inadmissibility  of  innate  ideas  of  law,  157.     Bain's  ex- 

glanation  of  the  origin  of  conscious  will  generally,  158. 
teinthal's  explanation  of  the  origin  of  language,  159. 
Analogous  explanation  of  the  origin  of  law,  159. 

Section  21.     Development  of  Law 162-165 

Hypothesis  of  voluntary  establishment,  and  Hypothesis 
of  natural  growth,  162.  Idea  of  a  "Struggle  for  Law," 
164.  Necessary  limits  of  this  theory,  165. 


xvi  TABLE   OF   CONTENTS 

BOOK  II 

Pages 

OBJECTIVE  AND   SUBJECTIVE   SIDES  OF  LAW     167-257 
CHAPTER  I.    LAW  OBJECTIVELY  CONSIDERED 167-191 

Section  22.     The  Objective  and  the  Subjective  Points  of  View 

in  Law 167-168 

Norms  and  relations,  167.  Correlation  of  objective  and 
subjective  law  (Right),  168. 

Section  23.     Juridical  Norms,  Orders 169-175 

General  form  of  juridical  norms,  168.  Defining  and  de- 
scriptive articles,  170.  Question  as  to  the  commanding 
character  of  legal  norms,  172.  Command  and  prohibi- 
tion, 174. 

Section  24.    Elements  of  Legal  Norms 176-182 

Hypothesis  and  disposition,  176.  Form  of  hypothesis, 
178.  Dispository  norms,  179.  Elements  of  norms  of 
criminal  law,  181. 

Section  25.     Content  of  Juridical  Norms 180-186 

General  content  of  norms,  183.  Limitations  on  identical 
interest  of  different  persons,  184.  Limitation  upon  un- 
equivalent  interests,  185.  Combined  interests,  186. 

Section  26.     Sanction  of  Legal  Rules 187-191 

Notion  of  a  sanction,  187.  Leges  perfects,  186.  Leges 
plus  quam  perfectce,  187.  Leges  minus  quam  perfectce  t 
189.  Leges  imperfectce,  190. 

CHAPTER  II.  LAWS  IN  THE  SUBJECTIVE  SENSE  (RIGHT)    192-231 

Section  27.     Juridical  Relations 192-199 

Relations  of  fact,  192.  Juridical  relations,  194.  Active 
and  passive  side  of  relations,  195.  Juridical  institu- 
tions, 197. 

Section  28.     Subject  (Bearer)  of  Juridical  Relations 200-207 

Subjects  (bearers)  are  persons  only,  200.  Juridical 
(fictitious)  persons,  202.  Boundaries  of  legal  capacity, 
204.  Beginning  and  end  of  legal  capacity,  206. 

Section  29.     Rights  and  Duties 208-215 

Conception  of  rights,  208.  Reflex  effect  of  law,  211. 
Extent  of  rights,  212. 

Section  30.     The  Objects  of  Rights 216-223 

Conception  of  objects,  things  over  which  rights  extend, 
216.  Four  categories  of  objects,  217.  The  subject's 
(bearer's)  personal  forces,  217.  Other  persons'  forces, 
218.  Forces  of  nature,  221.  Social  forces,  223. 

Section  31.     Juridical  Facts 224-231 

Conception  of  established  facts,  224.  Subjective  and 
objective  aspect  of  established  facts,  225.  Classification 


TABLE   OF   CONTENTS  xvii 

Section  31  —  Continued.  Pages 

of  juridical  facts,  226.  Juridical  action,  227.  Forms 
of  it,  228.  Representation,  229.  Illegal  situations  and 
violations  of  right,  230. 

CHAPTER  III.     PRIVATE  AND  PUBLIC  LAW 232-258 

Section  32.     Classification  According  to  Difference  of  Con- 
tent      232-242 

Ulpian's  formula,  232.  Savigny's  and  Stahl's  classifi- 
cation, 234.  Ahrens'  classification,  235.  Kaveline's 
classification,  236.  Zitovich's  classification,  240. 

Section  33.     Formal  Classification 243-250 

Kant's  classification,  244.  Puchta's  classification,  244. 
Jellinek's,  247.  Thon's,  248. 

Section  34.     Basis  of  the  Distinction  between  Public  and 

Private  Law 251-258 

Two  forms  of  delimitation  of  interests;  use  of  objects 
and  dominion  over  them,  251.  Insufficiency  of  each 
separately,  252.  Derivation  from  these  different  special 
forms  of  all  the  characteristics  of  private  and  public  law, 
253.  Explanation  of  both  classifications,  255. 


BOOK  III 

SOCIAL  CONDITIONS  OF  LEGAL  DEVELOPMENT    259-391 
CHAPTER  I.    SOCIETY 259-335 

Section  35.     The  Mechanical  Theory 259-269 

Opposition  of  mechanical  and  organic  conceptions,  259. 
General  philosophic  and  evolutionary  foundation  of  the 
mechanical  theory,  260.  Considerations  against  it,  262. 
Its  historical  services,  264.  Its  latest  modifications, 
266.  Criticism  of  Thon,  267. 

Section  36.     Organic  Theory 270-286 

Conditions  of  its  origination,  270.  Its  different  forms, 
274.  Absence  of  general  coincidence  of  organic  and 
social  phenomena,  275.  Proofs  of  the  analogy  not  veri- 
fiable, 276.  Unfruitful  ness  of  the  organic  theory  as  a 
scientific  hypothesis,  277.  Spencer's  argument,  278. 
Differences  between  phenomena  of  growth  and  of 
specialization,  280.  Absence  of  true  multiplication  and 
of  natural  death  of  societies,  283.  Nonconsecutiveness 
of  social  phenomena,  284.  Difference  between  acci- 
dental and  teleological  relations,  285. 

Section  37.     Nature  of  Society 287-297 

Difference  in  conditions  for  investigating  the  organic 
and  the  inorganic  world,  287.  Creator  complexity  of 
social  phenomena,  289.  Importance  of  ideals  in  the 


xviii  TABLE   OP  CONTENTS 

Section  37  —  Continued.  Pages 

social  life,  290.  Psychic  character  of  the  bond  holding 
men  in  society,  291.  Importance  of  the  organic  theory, 
293.  Results  from  the  psychical  theory  of  society,  294. 

Section  38.     Man's  Psychical  Nature 298-302 

Extremes  of  intuitionism  and  sensationalism,  298. 
Fusing  point  of  the  general  views  of  late  experimental 
psychology,  300. 

Section  39.     Freedom  of  the  Will 303-315 

Formulation  of  the  question,  303.  Relation  of  fatalism 
to  the  question,  305.  Importance  of  vital  statistics,  306. 
Solution  of  a  partially  free  will.  Fouillee's  theory,  307. 
Reid's  doctrine,  309.  Opposition  between  internal  and 
external  conditions,  311.  Considerations  against  the 
will's  freedom,  312.  Chief  arguments  against  it,  313. 

Section  40.     Society  and  Individuality 316-322 

Notion  of  individuality,  316.  Relationship  of  the  indi- 
vidual to  society  with  fusion  of  views  of  the  organic  and 
the  mechanical  theories,  319.  A  mediating  view,  320. 

Section  41.     Law  as  Social  Order 323-327 

Law  as  the  bulwark  of  individuality,  324.  Law  as  a 
social  product,  325.  Co-ordinating  functions  of  law, 
326. 

Section  42.     Forms  of  Social  Groups 328-335 

Involuntary  and  voluntary  associations,  328.  Origin 
of  opposing  associations  in  the  state,  328.  Doctrine 
of  Hegel  and  of  Lorenz  Stein,  330.  Ahrens'  views,  333. 
Mohl's  theory,  Id.  Indispensable  amendments  of  this 
theory,  335. 

CHAPTER  II.    THE  STATE 336-391 

Section  43.     Conception  of  the  State 336-344 

Causes  for  the  different  definitions  of  the  state,  337.  The 
distinguishing  mark  of  a  state,  339.  Distinguishing 
peculiarity  of  governmental  authority,  341.  Formula- 
tion of  definitions,  342. 

Section  44.     Governmental  Authority 345-351 

Authority  as  lawful  will,  345.  Authority  as  supreme 
will,  346.  Government  has  no  unified  will,  347.  Gov- 
ernmental authority  not  the  general  will,  348.  Defini- 
tion of  governmental  authority,  350. 

Section  45.     Organs  of  Authority 352-363 

Notion  of  organs  of  government,  352.  Deciding  and 
co-operating  organs,  356.  Preparatory,  advisory  and 
executive  classes  of  co-operating  organs,  Id.  Uni-per- 
sonal  and  collegiate  forms,  358.  Comparative  lack  of 
deciding  functions  in  various  organs,  359.  Co-operat- 
ing and  executive  organs,  360.  Position  of  govern- 
mental establishments  in  various  epochs  of  history,  361. 
Representative  and  professional  elements,  362. 


TABLE  OP  CONTENTS  xix 

Pages 

Section  46.     Forms  of  Governmental  Organization 364-370 

The  threefold  classification  according  to  the  number  of 
rulers,  364.  Its  insufficiency,  Id.  Difference  between 
monarchy  and  republic,  366.  Varieties  of  monarchies 
and  of  republics,  369. 

Section  47.     Authority  and  Law 371-376 

Relationship  of  government  and  law  according  to  the 
natural  law  school,  372.  Ihering's  doctrine,  373.  Lim- 
iting of  government  by  law  as  an  objective  fact,  375. 

Section  48.     Combinations  of  Governmental  Powers 377-391 

Montesquieu's  doctrine,  377.  Propositions  to  amend 
it,  by  Constant  and  Hegel,  380.  Generality  of  accep- 
tance of  Montesquieu's  principle,  383.  Co-ordination 
of  governmental  powers,  390. 

BOOK  IV 

POSITIVE  LAW 393-501 

CHAPTER  I.    THE  SOURCES  OF  POSITIVE  LAW.  . .     393-434 

Section  49.     Conception  of  Positive  Law 393-396 

Objective  character  of  legal  control,  393.  Positive  law 
as  an  element  of  civilization,  394.  Disadvantages  and 
advantages  of  positive  law,  395. 

Section  50.     Foundation  of  Action  of  Positive  Law 397-401 

General  foundation  of  positive  law,  397.  Peculiarities 
in  every  system  of  positive  law,  398.  Ordinary  editing, 
399.  Legislative  codifying,  Id. 

Section  51.     Sources  of  Law 402-409 

Definition  of  sources  of  law,  403.  Sources  of  the  recog- 
nition of  law,  Id.  Source  in  the  force  asserting  law,  405. 
Importance  of  sources  of  law,  406.  Acceptance  of  the 
judgment  of  positive  law,  407. 

Section  52.     The  Common  Law 410-419 

Old  theory  for  explaining  the  force  of  custom,  410. 
Puchta's  doctrine,  412.  Savigny's  suggestions  as  to  it, 
413.  Adicke's  doctrine,  414.  Formation  of  juridical 
customs  according  to  Puchta's  doctrine,  416.  Savigny's 
rectification  of  it,  417.  Marks  of  juridical  customs,  418. 

Section  53.     Judicial  Practice 420-424 

Relationship  of  judicial  practice  to  law  and  custom,  420. 
Doubts  as  to  its  independent  importance  as  a  source  of 
law,  421.  Action  of  judicial  practice  as  a  source  of  law 
affirmed,  422. 

Section  54.     Legislation 425-434 

Definition  of  enacted  law,  426.  Specially  obligatory 
force  of  it,  427.  Enactments  and  decretals,  429.  Order 
followed  in  enacting  laws,  430.  Ordinary  legislation 
and  constitution  making,  431.  Order  of  promulgation, 
432.  Arrangement  and  codification,  433. 


xx  TABLE   OF   CONTENTS 

Pages 

CHAPTER  II.    SOURCES  OF  RUSSIAN  LAW 435-471 

Section  55.     Relationship  of  Different  Sources 435-438 

Special  legislation,  435.  Common  law,  Id.  Judicial 
Practice,  436. 

Section  56.    Russian  Legislation 439-447 

Distinctive  marks  of  legislation,  439.  Possibility  of 
variances  between  legislation  and  general  decrees  in  ab- 
solute monarchy,  441.  Verbal  and  written  orders,  442. 
Order  followed  in  adopting  legislation,  444.  Promulga- 
tion, 446. 

Section  57.     Full  Collections  of  Statutes 448-452 

Characteristic  peculiarities  of  complete  statutes  and  of 
codes,  448.  Three  such  collections,  450.  Relationship 
of  the  code  to  the  collection  of  decrees,  451. 

Section  58.     First  Editions  of  the  Code 453-457 

Establishment  of  the  code,  453.  Its  system,  454.  Its 
contents,  455. 

Section  59.  Last  Editions  of  the  Code  and  Supplements. . .  458-467 
Original  plan  of  new  editions,  458.  Edition  of  1842,  459. 
Edition  of  1857,  461.  Later  editions,  Id.  General 
contents  of  the  code,  463.  Establishment  of  the  mili- 
tary code,  465.  Establishment  of  the  admiralty  code, 
466.  Local  laws,  Id. 

Section  60.     Importance  and  Force  of  the  Code 468-471 

Relationship  of  the  code  to  its  sources,  468.  Mani- 
festo of  Jan.  31,  1833,  469.  Opinion  of  Zitovich,  Id. 
Practical  value  of  the  code,  470. 

CHAPTER  III.    APPLICATION  OF  POSITIVE  LAW.  ..     472-501 

Section  61.     Criticism 472-476 

Higher  criticism,  472.  Criticism  of  official  editions,  474. 
Minor  criticism,  475. 

Section  62.  Relationship  of  Laws  from  Different  Times  and 

Places 477-485 

Statement  of  the  question,  477.  Two  possibilities  in 
their  application,  Id.  Considerations  in  favor  of  the 
law  of  the  time  and  place  of  the  fact,  478.  General  for- 
mula and  its  analysis,  480.  Idea  of  a  division  of  the 
fact,  481.  Place  and  time  generally  complex  facts,  483. 
The  greater  complexity  in  relationship  of  laws  of  differ- 
ent places,  484. 

Section  63.     Interpretation 486-492 

Purpose  of  interpretation,  486.  Grammatical  and  logi- 
cal interpretation,  487.  Historical  interpretation,  488. 
Systematic  interpretation,  Id.  Professional  and  doc- 
trinal interpretation,  491.  Analogy,  492. 

Section  64.     Scientific  Culture  of  Law 493-501 

Insufficiency  of  interpretation,  493.  Analysis,  494. 
Construction,  495.  Classification,  501. 


TRANSLATOR'S   PREFACE 


IN  the  year  1905  there  came  into  my  hands  a  cata- 
logue of  a  Paris  publisher  in  which  was  advertised  an 
International  Library  of  Public  Law.  The  English 
and  American  works  were  excellent  selections.  My 
attention  was  attracted  to  the  fact  that  these  French 
publishers  of  " international"  books,  in  whose  own 
country  Boistel's  work  had  lately  appeared,  and  where 
Fouillee  and  Renouvier  were  still  writing,  had  taken  for 
their  work  on  General  Theory  of  the  Law  that  of  a 
Russian  writer  of  whom  I  had  never  heard.  The  whole 
field  of  English,  German,  and  Italian  theorists  seemed 
to  be  passed  by,  in  thus  going  outside  of  France,  by 
these  French  publishers  who  were,  evidently,  seeking 
the  best  works  in  their  several  departments.  The  curi- 
osity thus  excited  resulted  in  an  order  for  the  French 
version. 

It  was  found  to  have  a  preface  by  Prof.  Larnaude  of 
the  University  of  Paris,  sketching  briefly  the  develop- 
ment of  legal  theory  in  Western  Europe  and  England  in 
late  years,  and  justifying  the  selection  of  Prof.  Kor- 
kunov's  work,  as  representing  most  fully  the  tendencies 
of  that  development,  notwithstanding  the  uceui)res 
mattresses"  in  France,  Germany,  England  and  Belgium, 
which  the  Paris  professor  cited.  The  book,  on  examina- 
tion, seemed  to  justify  its  selection,  and  Prof.  Larnaude's 
declaration  that  it  is  not  a  "simple  reflection  of  German 
science,"  but  that  "it  has  originality  of  its  own,  and 
above  all  a  surprising  clearness  of  form  and  expression." 

Another  statement  of  Prof.  Larnaude's  preface  was 
entirely  justified  by  the  French  copy.  "They  (the 
readers)  will  make  some  discoveries  not  lacking  in  inter- 
est. Notably  they  will  see  that  Korkunov,  "though 

xxi 


xxii  PREFACE 

teaching  in  a  country  of  absolutism  and  of  the  censor- 
ship, does  not  fear  to  attack  the  most  delicate  problems 
of  public  law.  If  it  were  not  published  under  a  Russian 
name,  no  one  would  suspect  that  it  was  written  in 
Russia.  It  has  boldnesses  which  perhaps  will  astonish 
a  little  the  Russians  themselves.  Who  would  believe 
that  ideas  like  the  following  are  taught  in  Russia?  'The 
regular  development  of  social  life  will  be  seriously  fettered 
if  conditions  which  are  indispensable  to  it  are  sacrificed 
to  the  present  hour,  to  that  interest,  for  example,  which 
offers  to  assure  external  order;  as  in  stifling  the  mani- 
festation of  all  ideas  in  order  to  restrain  the  propagation 
of  dangerous  ones,  order  might  be  re-established  more 
readily,  but  society  would  long  feel  the  disastrous  con- 
sequences of  suppressing  freedom  of  speech  and  of  the 
press.'" 

"There  will  be  no  less  astonishment  at  this  passage: 
'Though  the  government  is  the  representative  of  all  the 
people,  yet  the  people  can  also  act  sometimes  directly 
on  their  own  behalf.  It  is  probable  that  rules  which 
grow  up  of  themselves  are  better  applicable  to  the 
people's  interests  than  are  those  which  the  government 
might  propose.'  Individual  liberty,  too,  is  characterized 
as  'playing  a  great  role  in  Modern  Law,'  and  modern 
law  itself  as  'giving  the  preference  to  solutions  the  most 
compatible  with  individual  liberty."1 

"Those  searching  carefully  will  find  in  Prof.  Kor- 
kunov's  book  the  theory  of  popular  sovereignty  and 
everywhere  the  refutation  of  the  dogma  of  the  his- 
torical school  that  law  is  a  development  purely  national, 
and  that  a  bird  can  as  easily  become  a  mammal,  or  vice 
versa,  as  a  state  can  change  its  institutions,  the  organiza- 
tion conformed  to  its  national  genius." 

"This  opinion  of  the  historical  school,1  says  Kor- 
kunov,  '  is  false,  since  we  have  seen  that  a  change  brought 
about  in  the  social  ideal  may  bring  on  a  change  in  social 


PREFACE 


xxin 


development  itself.  By  studying  the  origination  of 
another  people  and  its  political  development  the  mem- 
bers of  a  given  society  can  bring  about  the  formation 
of  a  political  ideal  like  that  of  such  other  people.' " 

"When  I  have  stated  that  this  passage  refers  expressly 
to  the  attempts  made  at  the  end  of  the  XVIII  century 
to  bring  into  Russia  English  political  institutions,  I 
shall  have  shown  how  strong  a  spirit  of  liberalism  un- 
doubtedly animates  the  instruction  given  by  the  facul- 
ties of  law  in  Russia.  It  must  be  so,  since  we  find  the 
clearest  expression  of  it  in  the  work  of  one  of  the  most 
famous  of  professors  in  the  Russian  Universities,  con- 
sequently in  the  official  instruction  itself,  but  it  is  in 
curious  contrast  with  the  administrative  practices  which 
are  at  least  said  to  prevail  in  Russia." 

The  interest  excited  by  such  statements  from  Russian 
official  legal  instruction  was  succeeded  by  scepticism  as 
to  the  authenticity  of  some  of  them.  It  seemed  desir- 
able to  test,  by  comparison  with  the  original  Russian, 
some  of  these  "surprising"  passages.  It  happened  that 
I  have  lived  for  a  good  many  years  in  a  Czech,  or 
Bohemian,  community  and  had  a  somewhat  extensive 
acquaintance  with  that  language.  I  had  been  informed 
that  its  relationship  with  Russian  was  close.  After 
getting  the  Cyrillic  Alphabet,  it  was  found  that  the 
pronouns  and  prepositions  in  the  two  languages  are 
almost  identical,  the  verb  structure  and  inflection  nearly 
so,  and  the  other  inflections  are  much  alike,  and  the 
vocabularies  in  large  part  the  same. 

There  is  in  Lincoln,  Nebraska,  a  Russian  population 
of  several  thousand.  An  instructor  was  found  who  was 
a  graduate  of  the  University  of  Nebraska,  and  the 
French  version  was  carefully  compared  with  the  Russian, 
and  the  liberal  sentiments  were  found  to  be  all  in  the 
original  and  stated  with  even  more  pith,  condensation 
and  force  than  in  the  French.  It  seemed  desirable  that 


XXIV 


PREFACE 


a  translation  should  be  made,  and  the  one  here  offered 
was  prepared. 

Free  use  has  been  made  of  M.  TchernofFs  French 
version,  and  I  have  had  the  assistance  of  my  in- 
structor, Mr.  Felix  Newton,  a  born  Russian,  without 
whom  this  rendering  would  never  have  been  attempted, 
but  the  responsibility  for  the  English  form  of  the  work 
is  my  own.  It  is  hoped  that  no  injustice  is  done  to  the 
distinguished  Russian  teacher  or  to  his  work,  the  first 
Russian  edition  of  which  was  published  in  1887. 

The  author  was  at  that  time  a  professor  in  the  Uni- 
versity of  St.  Petersburg,  having  in  1878  succeeded 
Prof.  Redkin  to  the  chair  of  Legal  Encyclopedia.  He 
had  been  previously  a  teacher  of  the  same  subject 
in  the  Imperial  Alexandrian  Lyceum  at  St.  Petersburg. 
In  1889,  on  the  death  of  Prof.  Gradovsky,  he  succeeded 
to  the  chair  of  Public  Law  in  the  University  of  St. 
Petersburg.  This  he  held  till  his  death  in  1902  at  the 
age  of  forty-nine.  His  distinction  in  his  own  country 
rests  largely  on  his  Russian  Public  Law,  of  which  the 
sixth  edition  by  his  surviving  colleagues  appeared  in 
1908. 

A  Russian  Biographical  Dictionary  says  that  his  work 
"is  distinguished  by  penetrating  analysis,  and  abundant 
originality  of  view. " 

Of  his  General  Theory  of  Law,  which  is  here  trans- 
lated, an  eighth  edition  was  published  in  1908,  which  I 
have  not  seen.  The  one  used  in  making  this  translation 
was  the  sixth,  published  in  1904,  the  first  after  his  death, 
and  stated  to  be  "without  change." 

Besides  its  interest  as  the  authoritative  statement  of 
the  head  of  legal  instruction  in  the  Russian  Empire  at  the 
close  of  the  XlXth  century,  the  book  seems  fully  to 
deserve  Prof.  Larnaude's  claim  for  its  originality  and 
clearness,  above  given.  The  author's  studies  and  teach- 
ing while  holding  the  chair  of  "Encyclopedia  of  Law," 


PREFACE  xxv 

made  him  familiar  with  the  writings,  ancient  and 
modern,  of  the  theorizers  of  all  nations.  He  seems  to 
have  been  most  strongly  drawn  to  English  writers  and 
thinkers  on  law  and  government,  especially  J.  S.  Mill. 

His  point  of  view  is  certainly  much  less  individual- 
istic than  theirs.  He  seeks  to  harmonize  their  concep- 
tions with  his  own  inclination  to  see  all  problems  from 
the  point  of  view  of  society  instead  of  that  of  the  indi- 
vidual. He  is  permeated  with  the  evolutionary  philso- 
phy  and  tries  to  bring  social  and  legal  development 
within  it.  To  what  extent  he  has  succeeded  will,  of 
course,  be  a  matter  of  controversy. 

He  has  at  all  events  given  a  singular^  lucid,  though 
condensed,  perhaps  lucid  because  condensed,  statement 
of  the  various  views  which  have  prevailed  as  to  the  ele- 
ments of  law  and  its  functions  in  human  society,  and 
has  added  many  acute  observations  of  his  own.  His 
work  would  seem  to  go  far  towards  justifying  the  recent 
declaration  of  a  learned  writer,  Bruckner,  in  his  History 
of  Russian  Literature,  that  if  the  Russians  have  no  great 
philosophers  they  have  great  legists  as  well  as  great 
theologians. 

Prof.  Larnaude  in  his  preface  to  the  French  version, 
which  has  been  already  quoted  at  length,  says  that  no 
competent  instruction  is  even  yet  to  be  found  in  the 
French  schools  upon  this  "Cours, "  designed  to  show 
"the  object  and  end  of  juridical  science,  the  different 
parts  of  which  it  is  composed,  the  connection  of  all  these 
parts,  the  order  in  which  they  ought  to  be  successively 
treated,  and,  above  all,  the  method  which  ought  to  be 
employed  to  fill  this  gap."  He  adds:  " For  the  moment 
they  (the  publishers  of  the  French  version)  are  giving 
us  a  book  which,  while  not  especially  Russian,  is  from 
many  points  of  view  excellent." 

"Korkunov's  General  Theory  of  law  contains  in  truth 
parts  of  rare  vigor  and  originality.  As  to  natural  law, 


xxvi  PREFACE 

the  origin  of  law,  legal  norms,  the  distinction  between 
public  and  private  law,  the  theory  of  the  three  powers, 
moral  persons,  the  nature  of  society  and  of  the  state, 
and  a  good  many  other  questions,  there  will  not  simply 
be  found,  formulated  with  great  precision  and  uncommon 
force  of  reasoning,  the  chief  theories  which  are  at  the 
bottom  of  universal  legal  thought.  There  will  be  found, 
too,  Russian  theories,  often  very  ingenious.  Russian 
thought  is  not,  even  in  the  legal  domain,  though  pro- 
foundly influenced  by  German  science,  a  mere  reflection 
of  it.  From  these  different  points  of  view  Prof.  Kor- 
kunov's  book  will  be  read  I  think  with  very  great  in- 
terest by  all  those  who  for  the  first  time  penetrate  into 
Russian  juridical  thought." 

It  is  hoped  that  in  its  English  form  the  book  will  in- 
spire some  such  interest  in  others  as  its  Russian  and 
French  forms  have  in  the  translator.  The  Russian,  in 
its  condensation,  seems  to  lend  itself  to  re-expression  in 
English  even  better  than  in  French.  If  the  English 
version  does  not  do  justice  to  the  author's  thought,  the 
fault  must  be  laid  at  the  translator's  door.  The  need 
for  such  teaching  in  English  is  not  less  than  Prof.  Lar- 
naude  says  it  is  in  French. 

W.   G.  HASTINGS. 
LINCOLN,  NEBRASKA,  July  23,  1909. 


TRANSLATOR'S  PREFACE   TO  THE 
SECOND  EDITION 


The  exhaustion  of  the  edition  of  this  work,  printed  in 
1909,  and  the  necessity  of  setting  it  up  in  type  again,  as 
there  were  no  plates  of  the  former  printing,  have  furnished 
an  opportunity  to  correct  a  few  obvious  typographical 
errors  in  the  first  edition. 

In  truth,  Prof.  Korkunov's  book  seems  to  have  justified 
its  translation  into  English.  The  call  for  a  reprinting  is 
very  gratifying.  The  St.  Petersburg  law  teacher,  who  has 
been  dead  for  nineteen  years,  was  evidently  a  phenomenal 
man  in  his  power  of  intellectual  detachment  and  analysis, 
combined  with  moral  earnestness.  The  breakdown,  for 
the  time,  of  the  legal  system  under  which  he  worked  does 
not  of  course  in  any  way  impair  the  philosophic  value  of 
his  conclusions.  That  the  official  head  of  Russian  legal 
instruction  at  the  close  of  the  nineteenth  century  was 
capable  of  forming,  and  was  permitted  to  teach,  such 
opinions  as  are  here  represented  is  a  vindication  of  at 
least  some  parts  of  that  Czaristic  regime.  That  the  down- 
fall of  the  imperial  system  was  in  some  degree  precipitated 
by  Czaristic  reaction  against  the  legalist  movement  which 
developed  the  Duma  of  1905,  seems  now  clear. 

Prof.  Korkunov  would  surely,  had  he  lived  to  see  them, 
have  been  as  disappointed  as  any  of  us  at  the  terrible  con- 
sequences of  the  collapse  at  once  of  the  official  govern- 
ment and  the  official  church  throughout  the  vast  empire. 
That  the  breakdown  is  only  temporary,  and  that  there 
will  follow  a  reorganization  which  will  embody  sound 

xxvii 


xxviii    PREFACE   TO   THE   SECOND  EDITION 

practical  principles  of  justice  and  political  administration, 
the  presence  of  such  work  as  Korkunov's  in  the  great  body 
of  Russian  literature  is  certainly  a  strong  guarantee. 

W.  G.  H. 

STATE  UNIVERSITY,  LINCOLN,  NEBRASKA, 
June  1,  1921. 


General  Theory  of  Law 


THEORY  OF   LAW 

INTRODUCTION 

NEED  FOR  GENERAL  KNOWLEDGE 

SCHELLING.     Vorlesungen  uber  die  akad.   Studium,  1802. 
COMTE,  AUG.     Cours  de  philosophic  positive.     Tome  1 .    (Premiere 
b;on.) 

Section  1.  Human  knowledge  as  shown  in  the  sepa- 
rate sciences  presents  itself  only  as  divided  into  frag- 
ments. Observation  by  itself  gives  us  nothing  general. 
We  gain  from  it,  directly,  only  knowledge  of  isolated, 
partial  facts.  Meanwhile,  for  practical  life,  a  purpose 
not  to  be  left  out  of  view  by  any  living  science,  frag- 
mentary knowledge  does  not  answer.  The  life,  even  of 
a  single  individual,  presents  at  every  step  very  broad 
and  general  questions,  and  answers  to  them  he  expects 
precisely  from  science.  One  for  whom  even  a  little 
corner  of  existence  has  opened,  disclosing  henceforth  to 
him  the  world  of  scientific  comprehension,  does  not 
easily  reconcile  himself  again  to  surroundings  of  total 
darkness.  Moral  satisfaction  in  the  complete  finishing 
of  his  separate  work  he  will  experience  only  in  the  con- 
necting of  that  isolated  work  with  the  universal,  funda- 
mental questions  of  life.  A  fully  comprehended  and 
satisfactorily  finished  work  is  possible  only  under  the 
condition  of  being  performed  as  a  vitally  connected  part 
of  the  work  of  all  humanity;  and  for  such  an  understand- 
ing of  his  own  isolated  labors,  that  of  each  special  one 
does  not  suffice  the  man.  Every  one  involuntarily 
shows  the  tendency  towards  enlarging  his  knowledge, 
giving  it  the  character  of  generality,  so  that  all  questions 
which  life  raises  may  receive  scientific  treatment  and 
solution  as  far  as  possible. 

1 


2  THEORY  OF  LAW 

But  how  shall  we  attain  this  purpose?  Under  what 
form  turn  fragmentary  into  systematic  science?  The 
simple  means  for  that  purpose  at  first  view  would  seem 
to  be  the  augmenting  of  the  quantity  of  knowledge. 
To  arrange  so  that  I  should  know  all  the  science  attain- 
able by  any  one  and  serve  myself  with  the  general  knowl- 
edge held  by  all  mankind,  would  seemingly  solve  the 
problem.  If  the  bulk  of  this  knowledge  seems  too  great, 
and  passes  the  strength  of  any  individual  man,  it  is 
possible  to  lighten  it  at  the  expense  of  quality.  Though 
an  imperfect,  superficial  knowledge,  yet  it  would  be 
unrestricted  and  all-embracing.  Reaching  this  aim,  we 
attain  an  all-embracing  universal  science. 

To  settle  the  question  in  this  manner  is  to  resort  to 
the  encyclopedic  method.  But  whatever  the  importance 
of  an  encyclopedic  science,  it  is  not  that  which  is  to 
furnish  our  solution.  The  encyclopedic  method  can  give 
no  science  as  a  whole.  The  different  elements  of  human 
knowledge  will  all  be  found  grouped  as  one  may  arrange 
the  elements  of  science  acquired  by  a  single  individual. 
But  the  comprehension  of  this  mass  of  matters  through 
the  construction  of  an  articulated  system  is  not  the 
immediate  result  of  the  encyclopedic  method.  It  can 
bring  us  to  know  in  one  domain  the  small  details,  and 
by  the  side  of  this  our  ignorance  may  be  complete  as  to 
other  questions  of  much  greater  importance.  We  have 
found  by  the  aid  of  spectral  analysis  the  chemical  con- 
tents of  the  most  distant  stars.  But  how  is  it  with 
obscure  points  as  to  the  organization  of  our  own  bodies? 
Comparative  philology  shows  us  the  degree  of  civiliza- 
tion of  the  oldest  Aryans,  while  the  question  of  the 
origin  of  Russia  remains  as  insoluble  for  us  as  when  the 
comparative  method  was  not  even  a  name. 

Human  science  is  a  book  with  leaves  gone.  Here  on 
one  page  we  have  read  all  which  has  been  written,  but 
the  pages  which  precede  and  those  which  follow  do  not 


INTRODUCTION  3 

exist  and  that  which  we  have  read  only  irritates  us  as 
an  undecipherable  enigma.  Moreover,  human  science  in 
its  final  results  shows  itself  fragmentary.  Even  if  I 
should  attain  to  the  assimilation  of  all  which  men  know, 
my  science  would  not  exhibit  a  unified  system.  Even 
in  antiquity  when  the  mass  of  material  facts  of  science 
was  not  yet  so  great,  and  minds  were  not  uncommon 
which  embraced  the  entire  stock  of  human  knowledge, 
its  fragmentary  character  made  itself  felt.  Even  then 
generalization  of  knowledge  and  its  co-ordination  into  a 
general  system  was  struggled  for.  As  a  means  to  this 
came  the  thought  of  changing  the  very  method  of  study. 
Among  the  Greeks,  accordingly,  appeared  philosophy  as 
a  special  form  of  science.  Not  in  the  extending  of 
empirical  knowledge  did  the  Greek  thinkers  find  the 
means  for  giving  to  our  science  generalization  and  com- 
pleteness. They  sought  it  in  the  analysis  of  primary 
conceptions  found  in  all  men,  in  decomposing  them  into 
their  ultimate  elements,  and  in  bringing  them  into  more 
general  conceptions,  so  as  to  form  a  systematic,  inde- 
pendent whole,  detached  from  the  accidental  frame  of 
empiric  notions.  Thereby  the  very  source  of  knowledge 
was  changed.  Observation  gave  only  fragmentary 
science  and  therefore  they  filled  in  with  deduction.  I 
can  observe  only  accessible  phenomena.  Meditation, 
however,  knows  no  exterior  bounds.  Everything  may 
be  the  subject  of  meditation.  Freed  from  necessity  of 
observation,  it  can  go  forward  to  the  establishing  of  an 
entire,  complete  system,  to  what  is  called  a  philosophic 
system. 

Since  Plato's  time  the  thinkers  among  mankind  have 
worked  out  not  a  few  such  systems.  But  their  very 
number  and  the  impossibility  of  finding  a  sufficient 
objective  reason  for  preferring  any  one  of  all  these 
different  ones,  could  not  fail  to  produce  doubts  of  the 
utility  of  metaphysical  paths  towards  a  genuine  science 


4  THEORY  OF  LAW 

of  real  things  and  not  merely  a  collection  of  opinions. 
And  so  in  positivism  appeared  the  absolute  denial  of  any 
help  from  metaphysics.  But  even  the  positivists  were 
compelled  to  recognize  the  imperative  necessity  of  gen- 
eralizing this  special  knowledge  gained  by  empirical 
method.  Even  the  founder  of  positivism,  Auguste 
Comte,  explained  in  great  detail  the  insufficiency  of 
simple  special  knowledge. 

In  the  very  beginning  stage  of  our  science,  declared 
he,  it  is  not  possible  to  recognize  any  determinate  divi- 
sion of  intellectual  labor.  All  the  sciences  are  cultivated 
at  the  same  time  by  the  same  men.  This  stage  of  human 
knowledge,  inevitable  at  first,  changes  little  by  little 
according  as  separate  branches  of  science  develop.  By 
virtue  of  a  law  of  evident  necessity,  each  branch  of  the 
scientific  system  separates  itself  insensibly  from  the  stem 
just  far  enough  to  enlarge  itself  so  as  to  be  the  subject 
of  a  separate  science,  that  is,  to  occupy  by  itself  the 
activity  of  certain  minds.  It  is  to  this  division  of 
scientific  research  into  distinct  categories,  divided  out 
to  distinct  groups  of  savants,  that  we  owe  the  remark- 
able development  which  is  taking  place  before  our  eyes 
in  each  branch  of  knowledge.  From  this  new  state  of 
science  there  results  for  the  modern  savant  an  evident 
impossibility  of  beginning  again  those  encyclopedic 
studies  which  were  so  easy  and  common  in  antiquity. 
In  a  word  the  division  of  labor,  becoming  more  and  more 
marked,  is  one  of  the  distinguishing  characteristics  of 
modern  scientific  development.  But  in  fully  recognizing 
the  advantages  of  such  a  division  one  cannot  avoid,  on 
the  other  hand,  being  struck  with  the  disadvantages 
resulting  from  this  excessive  subdivision  of  the  studies 
with  which  the  learned  are  occupied.  These  disadvan- 
tages are  in  a  degree  inevitable,  but  we  may  be  per- 
mitted to  seek  an  alleviation  of  that  in  them  which  is 
most  troublesome,  while  leaving  in  its  entirety  the 


INTRODUCTION  5 

division  itself.  The  golden  mean,  evidently,  consists 
not  in  a  return  towards  antiquity  with  its  absence  of 
all  division.  This  would  result  in  hindering  the  future 
progress  of  knowledge.  It  consists,  on  the  contrary,  in 
developing  this  division.  Let  a  group  of  savants  deemed 
fit  for  such  work,  instead  of  devoting  themselves  to  some 
one  of  existing  separate  sciences,  consecrate  themselves 
to  the  exclusive  examination  of  their  present  state, 
their  tendencies  with  regard  to  each  other,  the  explana- 
tion of  their  connections  and  mutual  relations,  the 
reduction,  so  far  as  possible,  of  their  leading  principles 
to  a  less  number  of  more  general  ones;  let  other  savants 
guide  themselves  by  these  general  principles  so  that  by 
harmony  with  those  who  established  them,  they  may 
verify  by  a  common  effort  their  results,  and  thus  the 
division  of  labor  in  the  domain  of  scientific  activity 
can  be  developed  to  its  extreme  limits  without  science 
losing  itself  in  the  accumulation  of  details,  "without  the 
trees  preventing  our  seeing  the  forest." 

If  this  scientific  method  is  used,  a  synthetic  science 
will  be  reached  which  in  its  method  will  not  differ  from 
the  special  sciences.  Science  so  constituted  will  not 
reject  the  teachings  of  daily  experience,  nor  be  meta- 
physical, nor  claim  to  have  attained  to  the  absolute. 
It  will  propose  but  one  task,  to  reach  the  highest  point 
of  a  generalization  founded  upon  acquaintance  with 
phenomena,  consequently  upon  that  relative  knowledge 
which  is  the  subject  of  the  special  sciences. 

All  which  has  just  been  said  of  science  in  general  can 
be  applied  particularly  and  specially  to  the  study  of 
law.  Among  all  the  branches  of  science  it  is  precisely 
in  law  that  the  compelling  necessity  for  a  generalized 
system  is  felt.  This  arises  from  the  fact  that  we  cannot 
observe  law  in  its  entirety.  The  vault  of  heaven  with 
its  stars,  or  an  animal's  body,  we  conceive  before  all  as 
a  whole,  and  it  is  only  scientific  analysis  that  teaches 


6  THEORY  OF  LAW 

us  to  regard  them  as  complex  aggregations  of  a  multi- 
tude of  special  elements.  This  is  not  the  case  with  law. 
We  directly  perceive  only  separate  laws,  distinct  trans- 
actions, and  it  is  only  by  scientific  synthesis  that  we 
combine  these  separate  elements  into  a  single  concep- 
tion of  juridical  order,  into  a  single  idea  of  law  con- 
sidered as  the  norm  of  social  life.  Therefore  in  the 
study  of  law  the  fragmentary  condition  of  the  elements 
of  our  knowledge  is  so  much  the  more  serious  because 
we  do  not  recognize  its  unity  by  observation,  by  direct 
perception.  To  be  sure,  legal  relations,  the  peculiar 
relations  which  men  have  with  each  other,  are  not 
without  connection  between  themselves.  But  these  rela- 
tions, and  the  bond  which  unites  them,  are  not  evident 
nor  palpable  and,  moreover,  lawyers  do  not  study  them 
directly.  They  study,  to  tell  the  truth,  custom,  laws, 
judgments,  transactions  between  individuals.  But  all 
this  matter  is  at  first  view  extremely  varied,  and  the 
greater  the  development  of  social  life,  the  greater  is  this 
variety.  The  development  of  social  life  gives  birth  to  a 
larger  and  ever  larger  number  of  extremely  diverse  inter- 
ests, which  struggle  together  and  whose  delimitation  and 
determination  form  the  task  of  law.  In  a  social  life, 
so  complex  and  entangled,  the  same  interests  may  give 
rise  to  a  multiplicity  of  relations,  and  each  form  which 
they  take  demands  for  its  control  a  special  legal  rule. 
For  example,  the  rules  as  to  individual  inheritances  in 
modern  legislation  are  not  controlled  by  a  single  general 
law,  but  by  a  multitude  of  different  ones,  distributed 
among  various  branches  of  legislation.  Therefore,  a 
comprehensive  view  of  the  legal  organization  of  the 
rules  of  descent  of  property  can  be  secured  only  by  the 
aid  of  scientific  synthesis  embracing  the  numerous  differ- 
ent rules  which  make  up  such  legislation. 

At  the  same  time  no  science  touches  more  closely 
upon  the  immediate  questions  of  life  than  does  that  of 


INTRODUCTION  7 

law.  You  can  find,  perhaps,  in  our  social  organization 
a  man  who  has  never  concerned  himself  with  natural 
science  or  history.  Well,  search  the  age,  there  is  no  one 
wholly  unconcerned  with  legal  questions.  It  is  some- 
thing quite  unthinkable.  Be  ever  so  misanthropic, 
avoid  mankind  however  carefully,  yet  legal  questions 
shall  not  pass  around  you.  In  any  event  there  is  one 
domain  of  law,  that  of  personal  liberty,  which  shall 
imperatively  demand  your  attention.  In  shunning  men 
you  must  say  to  them,  "Here  commence  the  bounds  of 
that  domain  where  I  am  free;  you  have  no  right  to 
encroach  upon  it."  For  all  these  reasons,  it  is  in  legal 
science  that  the  tendency  to  generalize  ought  to  manifest 
itself  more  imperiously  than  anywhere  else;  and,  in  fact, 
there  has  been  for  a  long  time  an  idea  of  creating  by  the 
side  of  the  special  juridical  sciences  one  which  should 
give  a  complete  knowledge  of  the  law.  It  has  chosen 
the  first  of  the  means  which  we  have  indicated  for 
reaching  generalization  in  science,  the  encyclopedic 
method.  Its  task  consists  in  multiplying  and  expand- 
ing the  different  elements  of  the  science,  in  reuniting 
into  a  single  branch  various  concrete  facts,  and  in 
arranging  these  branches.  The  philosophy  of  law  in  its 
turn  seeks  to  establish  a  science  of  law  by  the  deductive 
method.  This  science,  because  of  the  end  which  it 
seeks,  strives  towards  a  unified  system.  Finally,  the 
general  theory  of  law  which  finds  birth  in  our  day  has 
for  its  purpose  the  creating  of  a  unified  theory  out  of 
the  concrete,  empiric  elements,  furnished  by  the  special 
branches  of  the  subject. 

The  encyclopedia  and  the  philosophy  of  law  ordinarily 
form  part  of  the  instruction  in  faculties  for  legal  train- 
ing. In  Germany  both  are  taught;  in  England  and 
France  philosophy  alone.  In  Russia  at  present  we  con- 
cern ourselves  only  with  encyclopedia,  though  formerly, 
before  the  university  crisis  of  1835,  it  was  the  philosophy 


8  THEORY  OF  LAW 

of  law  which  was  obligatory,  but  now,  as  we  have  said,  it 
is  encyclopedia  which  has  replaced  it.  These  three 
forms  of  science  having  the  same  object,  we  must  give 
some  effort  for  the  attentive  examination  of  each  of 
them  and  shall  estimate  them  in  turn  in  the  following- 
sections  of  this  introduction. 


INTRODUCTION 


ENCYCLOPEDIA  OF  LAW 

FRIEDLANDER.  Juristische  Encyclopadie  oder  System  der 
Rechtswissenschaft.  Heidelburg,  1847. 

ORTLOFF.  Die  Encyclopadie  der  Rechtswissenschaft  in  ihrer 
gegenwartigen  Bedeutung.  Jena,  1857. 

ORNATSKY.  Comparative  examination  of  Modern,  with 
Ancient  Greek  and  Roman  ideas  of  "Encyclopedia."  Collec- 
tion of  January  12,  1855.  Art.  7.  Moscow. 

REDKINE.  Review  of  Legal  Encyclopedic  Literature.  Red- 
kine  and  Janevich-Janovsky's  Juridical  Memories.  Vol.  5.  St. 
Petersburg,  1860. 

KARASEVICH.  Encyclopedia  of  Law.  Lectures,  given  at 
Laroslavl,  1872.  In  Demidoff's  Journal  of  the  Juridical  Lycee. 

ZWAIREV.  Encyclopedia's  place  in  the  organization  of  Juridi- 
cal Science.  Juridical  Messenger,  1880,  No.  1. 

Section  2.  Encyclopedia  in  its  usual  meaning  does 
not  denote  a  special  science.  It  ordinarily  means  not 
a  science  but  a  circle  of  sciences.  We  speak,  for  ex- 
ample, of  the  Encyclopedia  of  Bacon,  of  Wolf,  or  of 
Comte,  meaning  by  that  the  modes  of  classification  of 
the  sciences  which  those  writers  have  adopted.  If  we 
apply  the  term  to  a  book  we  mean  by  it  a  work  contain- 
ing in  some  order,  often  merely  alphabetic,  a  review  of  a 
more  or  less  extended  group  of  sciences,  sometimes  of 
all  the  sciences  at  once.  This  understanding  of  the 
term  is  based  on  its  etymology.  It  comes  from  a  Greek 
expression  meaning  a  circle  of  sciences  answering  to  a 
program  of  the  secondary  education  of  that  time.  The 
Romans  kept  the  same  meaning.  In  reality  the  words 
"Encyclopedia,"  "Cyclopedia,"  the  form  it  usually  has 
in  English,  or  simply  "Pedia,"  were  not  in  use  before 
the  sixteenth  century.  The  first  book  bearing  this  title 
was  Ringelberg's  Lucubrations  vel  potius  Absolutis- 
sima  Kyklopaideia,  1541.  The  author  has  combined 


10  THEORY  OF  LAW 

some  studies  upon  grammar,  rhetoric,  dialectics,  and  in 
a  distinct  part,  "Chaos,"  he  placed  what  would  not  go 
under  the  other  three  rubrics. 

When  we  apply  this  meaning  of  the  word  to  the  ency- 
clopedia of  law  in  particular  we  mean  by  it  only  a  gen- 
eral and  succinct  resume  of  materials  of  all  the  juridical 
sciences.  The  first  book  bearing  the  name  of  Encyclo- 
pedia of  Law  was  Hunnius',  1638.  But  he  was  only  the 
first  to  make  use  of  the  name.  A  book  whose  subject 
was  the  same  was  published  before  his,  under  another 
title.  It  is  claimed,  indeed,  that  the  first  encyclopedic 
work  on  law  was  the  Speculum  Judiciale  of  Durantis, 
1275.  This  is  not  to  be  accepted.  The  assertion  of  it 
rests  upon  the  fact  that  the  nature  of  his  subject  includes 
Roman  as  well  as  canon  law.  This,  however,  is  not 
sufficient  ground  for  calling  Durantis'  Speculum  Judi- 
ciale encyclopedic.  First:  It  does  not  embrace  all  law. 
Feudal  law  is  not  treated.  Roman  law  is,  moreover, 
so  closely  bound  up  with  canon  law  that  the  common 
study  of  both  parts  was  necessary  aside  from  any 
encyclopedic  purpose.  Second:  Durantis'  Speculum 
was  intended  to  serve  as  a  manual  not  for  the  study 
of  law  as  a  whole,  but  for  lawyers  in  judicial  employ- 
ments. The  author  sets  forth  his  general  views  in  a 
little  preface  in  which  he  distinguishes  among  other  six 
laws  after  the  number  of  wings  of  the  cherubim:  "Per 
sex  alas  sex  leges  intellige:  prima  est  lex  naturalis,  secunda 
mosaica,  tertia  prophetica,  quarta  evangelica,  quinta 
apostolica,  sexto,  canonical 

It  is  more  correct  to  place  the  origin  of -encyclopedic 
literature  in  the  XVI  century  when  we  can  show 
the  coming  of  many  works  of  a  systematic,  methodical 
character,  covering  all  branches  of  the  law.  Among 
them  that  of  Lagus,  a  German  jurist,  Lagus'  Methodica 
Juris  utriusque  Traditio,  1543,  deserves  special  atten- 
tion. It  had  up  to  the  end  of  the  century  six  editions 


INTRODUCTION  11 

and  afterwards  two  more  which  later  were  revised  by 
Freigius.  This  proves  the  book  had  an  unquestionable 
success.  It  ought  to  be  considered  as  the  first  syste- 
matic encyclopedia  of  law.  It  includes  not  only  law, 
public  and  private,  but  also  positive  law  and  the 
philosophy  of  law.  It  is  divided  into  two  parts,  first, 
pars  philosophical  second,  pars  historica.  The  first  part 
embraces  the  origin  of  law,  legislation,  manners,  the 
commentary  and  application  of  law,  the  theory  of  analo- 
gies, and  that  of  fictions,  and,  besides,  natural  law.  In 
the  second  part  is  positive  law.  He  describes,  too,  the 
different  sorts  of  legal  relations,  forma  juris,  and  for 
each  of  them  sets  four  questions:  Who  is  the  owner  of 
the  rights?  How  does  he  get  a  right?  How  lose  it 
and  how  keep  it? 

The  expression  "Encyclopedia  of  Law"  as  we  have 
said  does  not  appear  till  the  XVII  century  and  the 
first  work  bearing  the  name  was  Hunnius'  Encyclo- 
pedia Juris  Universi,  Cologne,  1638.  It  was  re-edited  in 
1642,  1658  and  1675.  The  book  is  divided  into  five 
parts  and  contains  a  review  of  law  under  an  artificial 
system.  First,  Jus  personae.  Second,  De  Judiciis  et 
processu  Judicario.  Third,  De  contractibus.  Fourth, 
De  Materia  ultimarum  Voluntatum. 

All  the  historians  of  encyclopedic  literature  of  the 
law  consider  Hunnius  as  not  only  the  first  to  employ  it, 
but  as  the  only  one  of  that  century.  This  latter  is  incor- 
rect. Two  years  after  his  book,  in  1640,  there  was  pub- 
lished at  Frankfort  a  work  entitled,  Encyclopedia  Juris, 
publici  privatique,  civilis,  criminalis,  feudalis,  Autore 
Joanne  Philippo  a  Vorburg.  At  the  head  of  the  book  is 
found  a  discourse  of  Hallutius  upon  the  importance  of 
encyclopedia  in  general.  Then  comes  a  preface  by 
Vorburg  himself  upon  Juridical  Encyclopedia.  The 
book  has  two  very  unequal  divisions.  First,  Collection 
of  legal  rules, — Nux  regularis  Juridica  sive  Accurata  et 


12  THEORY  OF  LAW 

articulosa  enucleatio  atque  expositio  omnium  Juris 
civilis  regularum,  by  Wolfgang  Sigismond  of  Barburg, 
Dean  of  Ashfenburg;  and  second,  A  Legal  Dictionary. 
Besides  this  work  of  Vorburg,  one,  which  is  not  men- 
tioned by  any  encyclopedist,  appeared  in  1675,  that  of 
Unverfarth,  Paediae  Jurisprudentise.  The  author  defines 
his  "Pedia"  thus:  "Pcedice  wcabulum  proprie  significat 
institutionem  puerilem,  qua,  si  bona  sit  animi  ad 
virtutes  et  bonas  artes  capessendas  subiguntur"  He 
assigns  to  "Pedia"  seven  ends,  among  them:  First, 
Determination  of  sources  and  criteria  of  scientific  truth; 
third,  of  the  scientific  method  also;  fourth,  a  table  of 
books  and  documents  for  the  use  of  the  learned.  The 
book  is  divided  according  to  this  scheme.  It  has  twenty- 
three  chapters  devoted  exclusively  to  setting  forth  the 
general  questions  just  mentioned  without  going  into  the 
detailed  development  of  any  branch  of  juridical  science. 
For  this  reason  Unverfarth's  book  ought  to  be  credited 
with  much  more  value  than  that  of  Hunnius. 

In  the  XVIII  century  two  diametrically  opposing 
tendencies  show  themselves  in  juridico-encyclopedic 
literature.  This  was  the  time  when  the  rupture  was 
most  complete  between  the  philosophic  and  the  positive 
sciences.  Some  were  written  under  the  dogmatic  or 
positive  tendency,  as  it  was  then  called.  Such,  for 
example,  was  Stephane  (Putter's)  Entwurfeiner  Juris- 
tischen  Encyclopedia,  Gottingen,  1757,  which  really 
brought  the  term  encyclopedia  into  current  use,  and 
which  also  separated  methodology  from  encyclopedia, 
which  cannot  be  reckoned,  to  tell  the  truth,  as  a  merit. 
Others  belong  to  the  philosophic  tendency.  Such  are 
the  works  of  Nettelbladt,  Wolf's  celebrated  pupil,  who 
wrote  several  encyclopedic  manuals,  well  known  at  that 
time.  The  encyclopedias  written  under  this  influence 
remained,  as  before,  brief  compends  of  the  contents  of  the 
special  sciences  and  nothing  more.  The  philosophic 


INTRODUCTION  13 

system  gave  to  summary  expositions  of  this  kind  a  suit- 
able form,  some  ready  made  plans,  some  rubrics  and  cate- 
gories, but  did  not  bring  forth  the  intrinsic  unity,  the 
general  idea  which  should  dominate  the  whole. 

It  is  only  with  the  commencement  of  the  XIX 
century  that  the  characters  of  legal  encyclopedias 
change.  Some  new  and  enlarged  requirements  were 
made  of  them.  The  encyclopedists  were  not  satisfied 
with  brief  expositions  of  the  materials  of  special  juridical 
sciences.  They  aspired  to  make  of  encyclopedia  an 
independent  science  having  its  own  task.  This  new 
tendency,  which  sees  in  encyclopedia  not  only  a  special 
manner  of  setting  forth  a  science,  but  a  distinct  and  inde- 
pendent science,  was  formed  under  the  immediate  influ- 
ence of  Schelling's  and  Hegel's  doctrines,  who  first  had 
spoken  of  encyclopedia  as  a  science. 

The  need  of  raising  encyclopedia  to  the  level  of  an 
independent  science  is  recognized  when  the  insuffi- 
ciency of  the  notion  of  it  till  then  prevailing  is  observed. 
Encyclopedia  was  certainly  designed  in  the  thought  of 
its  inventors  to  remedy  those  inconveniences  which  lie 
at  the  commencement  of  legal  study  in  its  special 
branches,  civil  and  political  law  for  example;  the  study 
of  special  parts  supposing  always  a  knowledge  of  a 
series  of  general  juridical  notions,  such  as  law  in  the 
subjective  and  objective  sense,  the  state,  capacity  of 
persons,  etc.  Even  the  history  of  law  supposes  this 
knowledge,  since  all  history  is  essentially  the  translation 
of  historic  phenomena  into  the  language  of  modern 
notions  and  the  history  of  law  into  the  language  of 
modern  juridical  ideas.  So,  indeed,  one  feels  the  need 
of  an  introduction  to  the  study  of  law  which  shall  not 
leave  the  professor  under  the  necessity  of  beginning  to 
study  certain  parts  of  a  science  whose  outline  remains 
unknown.  But  it  is  doubtful  whether  the  means  pro- 
posed would  answer  the  purpose;  whether  a  brief  sketch 


14  THEORY  OF  LAW 

of  all  the  parts  of  the  science  can  serve  as  a  satisfactory 
introduction  to  the  study  of  law.  If  it  is  difficult  to 
begin  by  a  detailed  study  of  some  of  the  parts,  it  is 
equally  so,  to  begin  by  a  superficial  study  of  more.  The 
difficulty  consists  not  in  the  abundance  of  details  but  in 
the  too  fragmentary  character  of  the  study  itself.  A 
rational  study  o!  law  does  not  consist  simply  in  recog- 
nizing the  meaning  of  the  principal  terms,  the  division 
of  the  science  into  distinct  branches  and  investigating 
the  material  with  which  each  of  them  deals.  To  get 
brief  notions  of  details  is  not  to  get  the  idea  of  a  whole. 
To  join  parts  into  a  whole  is  not  simple  and  easy  even 
to  those  who  are  acquainted  with  the  parts.  The  con- 
troversies of  which  the  general  system  of  law  is  the 
subject,  are,  as  we  shall  see,  the  proof  of  this.  A  rapid 
review  of  all  parts  of  law  makes  an  even  more  defective 
preparation  for  legal  study  than  does  an  elaborate  and 
detailed  study  of  a  separate  branch.  A  special  study 
sufficiently  thorough  permits  of  studying  some  part  in 
its  relations  to  the  whole.  In  showing  him  to  the 
bottom  all  the  materials  of  one  branch  of  the  law,  the 
student  is  at  a  stroke  introduced  in  medias  res.  The 
richness  of  the  content  interests,  attracts  him,  and  a 
rigorously  scientific  study  accustoms  him  to  scientific 
observation  and  analysis.  A  rapid  study,  condensed 
like  a  manual,  is  incapable  of  interesting  him  because 
of  the  poverty  of  its  content;  superficial,  it  does  not  go 
to  the  bottom  of  the  subject  and  instead  of  fruit  gives 
him  the  bark. 

With  these  considerations,  which  are  suggested  to  us 
by  the  conditions  of  instruction,  a  good  many  others 
unite.  It  is  not  merely  the  beginners  who  feel  the  need 
and  difficulty  of  conceiving  science  as  a  whole.  A 
specialist  who  studies  only  some  particular  scientific 
question  experiences  the  same  necessity.  The  develop- 
ment of  science  brings  with  it  greater  and  greater 


INTRODUCTION  15 

specialization.  In  legislation,  as  in  other  things,  speciali- 
zation unceasingly  increases.  One  finds  quite  frequently 
among  the  ancient  lawyers,  authors  devoted  to  studies 
bearing  upon  all  branches  of  legal  science.  So  in  the 
first  half  of  this  century  there  were  savants  equally 
perfect  in  two  or  three  branches  of  legal  study.  For 
example,  K.  S.  Zacharia,  who  treated  of  public  and 
private  law;  Heffter,  who  employed  himself  upon  both 
criminal  and  international  law;  Blunt schli,  who  taught 
international,  public  and  private  law,  etc.  Now  by 
pressure  of  things  in  the  domain  of  law  the  learned  are 
compelled  to  restrict  their  field  of  research.  But  this 
concentration  of  scientific  effort  upon  a  more  limited 
domain,  this  concentration  required  by  the  develop- 
ment and  specialization  of  science,  ought  not  to  have 
as  a  result,  it  goes  without  saying,  the  restricting  of  the 
jurist's  horizon.  As  we  have  said,  special  and  particular 
research  upon  a  determinate  matter  can  produce,  if 
well  conducted,  extensive  results  which  throw  a  new 
light  on  man's  conception  of  the  universe.  The  best 
example  is  Darwin's.  Being,  and  always  remaining,  a 
mere  zoologist,  he  nevertheless  reached,  in  his  study 
upon  The  Origin  of  Species,  the  establishment  of  a 
vast  and  profound  system  which  gave  birth  to  a  new 
conception  of  the  Universe  called  by  good  right  "  Darwin- 
ism." 

But  that  a  special  study  may  have  this  fruitfulness, 
the  desired  direction  must  be  given  it.  It  is  necessary 
in  working  upon  individual  questions  not  to  lose  sight 
of  general  principles,  and  to  consider  the  development 
of  parts  a  means  and  not  an  end.  In  a  word,  every 
specialist,  however  peculiar  his  subject,  ought  to  have 
as  his  aim  science  considered  as  a  whole.  To  attain  this 
aim  the  savant  must  be  inspired  with  a  fixed  conception 
embracing  all  the  progress  realized  by  science  at  a  given 
moment;  but,  by  what  means  is  he  to  reach  such  a  con- 


16  THEORY  OF  LAW 

ception?  He  cannot  create  it  himself.  This  would  re- 
quire a  preliminary  labor  which  would  prevent  his 
devoting  himself  to  his  special  studies,  since  a  rapid 
review  of  different  materials  of  science  is  absolutely 
helpless  to  bring  out  the  idea  of  unified  knowledge. 
A  rapid  review  of  this  kind  never  determines  the  connec- 
tion between  the  particular  question  of  the  savant's 
studies  and  other  scientific  questions. 

So  we  think  we  have  established  that  encyclopedia,  as 
ordinarily  understood,  cannot  satisfy  the  requirements 
of  scientific  instruction.  It  gives  no  general  notion  of  a 
science  conceived  as  a  whole. 

It  is  these  defects  of  encyclopedia,  regarded  as  a  rapid 
superficial  review  of  materials,  as  a  manual  of  other 
sciences,  which  have  given  birth  to  the  idea  that  it  must 
be  allowed  standing  as  a  separate  science,  designed  to 
show  the  general  connection  between  the  different  ques- 
tions which  the  special  sciences  study  separately.  Schel- 
ling  developed  this  idea  in  his  Discourse  upon  Academic 
Studies  conformably  to  his  conception  of  the  Universe, 
according  to  which  the  whole  is  organically  bound 
together.  He  considered  science  as  a  living  organism. 
Its  distinct  parts  are  not,  for  him,  dead  mechanical  por- 
tions, but  living  parts  of  a  living  whole.  Just  as  an 
organ  of  any  organism  can  be  understood  only  on  con- 
dition of  being  studied  in  its  relation  with  the  entire 
organism,  so  one  can  suitably  study  and  comprehend 
each  branch  of  a  science  only  in  its  connections  with  the 
whole  of  it.  It  is  this  purpose  that  "  Encyclopadie " 
ought  to  serve,  having  as  object  the  study  of  all  human 
science.  It  appears  then  not  as  one  of  the  special 
sciences  but  as  the  science  of  sciences  which  commands 
the  rest,  as  a  "potential "  science  containing  in  itself  all  the 
essentials  which  the  special  sciences  develop  in  detail. 

Hegel's   doctrine   offers   a   synthesis   even  more  har- 
monious and  more  audacious.     For  him  the  whole  uni- 


INTRODUCTION  17 

verse  is  only  an  uninterrupted  dialectic  development  of 
absolute  thought.  He  has  extended  this  synthetic  view 
to  science,  which,  being  itself  one  of  the  phases  of  dialectic 
development,  presents,  also,  in  its  branches  phases  of 
this  movement.  This  is  why  he  demands  that  special 
sciences  be  studied  in  their  connection  with  the  whole, 
since  they  are  for  him  only  phases  of  methodic  develop- 
ment of  a  unified  science, — "The  One." 

These  ideas  set  forth  by  Schelling  and  Hegel  induced 
a  considerable  movement  in  encyclopedic  literature.    The 
best  of  more  recent  legal  encyclopedias  have  all  been 
made  more  or  less  under  the  influence  of  these  ideas. 
Among  those  thus  made  are  Karl  Putter's  Der  Inbegriff 
der    Rechtswissenschaft,    oder  Juristische    Encyclopadie 
und  Methodologic,  1846,  which  first  introduced  into  the 
encyclopedia  the  study  of  the  general  history  of  the 
law,    and    Friedlander's    Juristische    Encyclopadie    oder 
system  der  Rechtswissenschaft,   1847,  which  gives  in  a 
little  book  the  best  attempt  yet  made  to  present  "Ency- 
clopadie" as  a  special  science.    The  encyclopedias  which 
show  the  direct  influence  of  Schelling's  system  like  that 
of  Rudhart,  Encyclopadie  und  Methodologic  der  Rechts- 
wissenschaft,  1823,  do  not  shine  by  any  special  quali- 
ties.    But  the  organic  conception  of  the  Universe,  the 
main  point  of  Schelling's  doctrine,  has  given  birth  to 
the  three   best   later    German    Encyclopedias,    Ahrens', 
Warnkonig's,     and     Walter's.       In     that     of     Ahrens, 
Juristische  Encyclopadie,  1857,  the  organic  conception  of 
the    Universe    appears    with    the    modifications    which 
Krause,  one  of  Schelling's  successors,  had  brought  in. 
Warnkonig,  Juristische  Encyclopadie,  1853,  shows  him- 
self a  partisan  of  the  same  organic  system  as  the  younger 
Fichte.     In    Walter's    Juristische    Encyclopadie,    1856, 
the  organic  tendency  is  joined  with  Stahl's  theological 
one.      All    the    encyclopedias    of    the    XIX    century 
which  we  have  cited  follow,  then,  the  philosophic  ten- 


18  THEORY  OF  LAW 

dency;   but  it  has  not  been  the  only  one.     Even  in  the 

XVIII  century  there  was   observed  besides  it  a  con- 
trary tendency  which  has  now  everywhere  a  historic 
character.     To  it  belong  Falk's  Juristische  Encyclopadie, 
1821-5,  Ausgab.  v.  Jhering,   1851,  and  Bluhme's  Ency- 
clopadie der  in  Deutschland  geltenden  Rechte.     First, 
Ausg.     1847-54.      Second,    Ausg.     1855-69.      For    the 

XIX  century  the  period  from  1840  to  1860  marks  the 
time  of  greatest  development  of  encyclopedic  literature. 
The  following  period  marks  its  decline.     If  we  leave  out 
Goldschmidt's    book,    Encyclopadie    der    Rechtswissen- 
schaft,  1862,  which  does  not  set  forth  an  "Encyclopadie" 
but  gives  only  a  resume  of  matters  embraced  in  uni- 
versity instruction,  with  notation  of  authors  to  be  con- 
sulted, no  attempt  was  made  in  Germany  after  those 
mentioned  till  the  period  from  1870  to  1880  to  set  forth 
the  "Encyclopadie"  of  law  as  a  whole.     HoltzendorfF s 
Encyclopadie  der  Rechtswissenschaft,    1889,   is   only  a 
collection  of  articles  by  different  authors.     They  are  in 
two  separate  volumes.     In  the  first  the  author  has  set 
forth   a   short   expose  of  the  special   juridical   sciences 
preceded  by  a  brief  study  of  the  general  history  of  law 
by  Merkel.    The  second  volume  is  a  juridical  dictionary. 
So  we  do  not  recognize  it  as  an  "Encyclopadie"  as  Schel- 
ling  and  Hegel  conceived  one.     It  is  only  in  1885  that  a 
new  systematic  study  of  "Encyclopadie"  is  attempted. 
Merkel  in  his  Juristische  Encyclopadie,  1885,  does  not 
follow,  to  say  the  truth,  the  tendencies  of  the  encyclop- 
edists of  1850  to  1860.    He  does  not  make  of  his  "Ency- 
clopadie" an  independent  science.    It  consists  of  a  review 
of  the  special  juridical  sciences  and  has  not,  consequently, 
the  character  of  an  independent  one.     This  does  not 
reduce  its  value.     The  first  part,   especially  where  he 
gives  a  brief  sketch  of  the  General  Theory  of  Law,  is  a 
very  precious  and  interesting  contribution  to  legal  litera- 
ture.    It  is  the  same  with  Gareis'   Encyclopadie  und 


INTRODUCTION  19 

Methodologic  der  Rechtswissenschaft,  1887.  It  is  still 
more  like  a  simple  review  of  special  juridical  matters, 
for  its  general  part  is  less  developed.  Gareis,  himself, 
defines  "Encyclopadie"  as  a  systematic  review  of  the 
law. 

The  little  book  of  Ratkovsky,  Encyclopadie  der 
Rechtswissenschaft  und  Staatswissenschaften  als  Ein- 
leitung  in  deren  Studium,  Vienna,  1890,  is  divided  into 
three  parts.  In  the  first  part  are  explained  the  leading 
legal  conceptions.  In  the  second  is  found  a  review  of 
sciences  rigorously  juridical,  and  in  the  third  a  review 
of  the  political  sciences,  all  in  a  hundred  pages.  Thus 
the  authors  of  the  most  recent  works  on  "Juristische 
Encyclopadie"  have  not  sought  to  make  of  it  an  inde- 
pendent science.  How  explain  this  fact?  Why,  after 
such  a  series  of  efforts  to  raise  it  to  the  level  of  a  science, 
is  there  a  return  to  the  old  conception  long  since  con- 
demned? Why  is  " Encyclopadie"  considered  again  as  a 
mere  brief  resume  of  special  matters  without  any  intrin- 
sic unity,  made  generally  upon  an  arbitrary  plan,  alpha- 
betic at  need?  There  is  only  one  explanation.  Lawyers 
no  longer  believe  that  it  is  possible  to  realize  Schel- 
ling's  and  Hegel's  ideas.  They  no  more  admit  that 
"Encyclopadie"  can  be  made  a  science  of  sciences  dis- 
tinct and  independent  and  embracing  the  content  of  all 
the  special  sciences.  The  German  philosophers  thought 
to  inspire  themselves  with  the  idea  that  each  special 
question  ought  to  be  studied  in  its  connections  with  the 
whole;  otherwise  the  study  would  have  no  living  value, 
would  be  sterile.  Meanwhile,  this  is  the  general  condi- 
tion necessary  to  all  science  which  seeks  to  keep  a  char- 
acter genuinely  scientific.  It  is  a  condition  which  every 
science  ought  to  fulfill  and  not  merely  the  pretended 
encyclopedic  one.  Only,  this  last,  it  is  said,  to  consti- 
tute a  science  must  bear  upon  special  and  independent 
matter.  What  is  that  matter?  We  are  told  that  "Ency- 


20  THEORY  OF  LAW 

clopadie"  embraces  the  materials  of  all  the  sciences.  To 
this  we  may  object  with  Konopake, — either  "Encyclo- 
padie"  is  not  a  science  or  it  is  incapable  of  embracing 
the  materials  of  all  the  sciences,  for  the  sum  cannot  be 
equal  to  each  of  the  parts  taken  separately.  Aside  from 
this  entirely  formal  argument,  we  must  observe  that 
the  existence  of  "Ency clopadie"  as  a  science  of  the 
sciences  would  render  these  other  sciences  absurd  and 
objectless.  It  would  swallow  up  in  itself  all  the  matters 
of  which  they  treat.  On  the  other  hand  it  is  the  divi- 
sion of  our  scientific  studies  that  makes  necessary  most 
of  the  special  sciences  and  impossible  the  existence  of  a 
distinct  and  independent  one  embracing  all  human 
knowledge.  So,  it  is  necessary  to  recognize  in  the 
decadence  of  encyclopedic  literature  no  passing  phe- 
nomenon; it  is  rather  a  proof  of  the  sterility  of  the 
encyclopedic  idea  itself. 

In  setting  forth  the  history  of  encyclopedic  literature 
we  have  spoken  only  of  Germany,  for  German  literature 
alone  presents  on  this  subject  a  regular  development 
prepared  by  a  current  of  preceding  ideas.  If  some 
encyclopedias  of  law  have  been  published  in  other 
countries  they  have  been  only  imitations  of  the  Ger- 
mans, and  are  to  be  considered  as  accidental  facts  with- 
out importance.  In  Russia  "  Encyclopadie "  was  taught 
for  the  first  time  at  the  end  of  the  eighteenth  century  by 
German  savants  at  the  University  of  Moscow.  The 
first  professor  of  it  was  the  celebrated  Bause,  who  was 
inspired  with  the  principles  of  Wolf's  philosophy;  after 
him  came  Purgold.  But  encyclopedic  instruction  at 
this  period  was  optional.  It  was  only  after  the  legisla- 
tion of  1835  that  it  was  introduced  into  the  University's 
programme  as  obligatory.  From  this  time  date  the 
Russian  encyclopedias  of  law.  Down  to  1835  there  had 
been  published  only  Degai's,  entitled,  Advice  and  Rules 
for  Applying  Russian  Law,  or  materials  for  the  Ency- 


INTRODUCTION  21 

clopedia,  Methodology,  and  History  of  Russian  Law, 
1831.  This  book  is  only  a  compilation  and  has  now 
only  one  interest,  that  of  showing  us  our  own  jurispru- 
dence before  the  promulgation  of  the  code.  The  next 
following  book  was  Nivoline's  Encyclopedia  of  Juris- 
prudence, 1839,  second  edition,  1857,  decidedly  better 
in  scientific  quality.  At  its  head  is  a  short  philosophic 
introduction  where  the  author  explains  the  notion  of 
law.  He  tries  to  base  this  part  upon  Hegel's  and  Stahl's 
philosophic  doctrines,  defending  with  Stahl  the  existence 
of  a  personal  God  who  governs  at  his  will  the  fate  of  the 
philosophy  of  legislation  and  then  that  of  positive  legis- 
lation. In  the  history  of  the  philosophy  the  author 
gives  a  detailed  analysis  of  philosophic  doctrines  founded 
upon  a  direct  study  of  the  sources.  The  history  of 
positive  legislation  is  treated  with  less  personal  care. 

Rojestvensky's  Encyclopedia  of  Law,  1863,  is  con- 
cerned in  quite  a  different  order  of  ideas.  The  author 
excludes  absolutely  from  his  book  philosophic  doctrines 
of  the  law  and  all  history  of  positive  law.  The  book, 
simply  dogmatic,  contains  a  sketch  of  materials  of 
juridical  sciences  and  is  found  preceded  by  a  general 
philosophic  introduction  inspired  by  the  doctrines  of 
the  younger  Fichte. 

Rojestvensky's  book  is,  moreover,  the  only  Russian 
encyclopedia  giving  an  outline  of  matters  of  juridical 
science.  The  work  of  Kapoustine,  published  in  1868, 
Juridical  Dogmatics,  and  that  of  Rennenkamp,  Outline 
of  Juridical  Encyclopedia,  1880,  second  edition,  are  only 
general  studies  in  the  law.  They  present  no  application 
of  fixed  philosophic  ideas.  They  are  eclectic  in  char- 
acter. Yet  they  are  the  best  two  manuals  of  encyclo- 
pedia of  law  in  Russian  literature.  Unfortunately,  they 
are  no  longer  in  current  use.  In  the  last  twenty  years 
many  new  works  in  legal  literature  and  upon  legislation 
have  appeared,  but  the  Juridical  Dogmatics  of  Prof. 


22  THEORY  OF  LAW 

Kapoustine  is  still  in  its  first  edition.  Prof.  Rennen- 
kampf  s  book,  republished  in  1880,  appeared  again  in 
1889  in  briefer  form,  under  the  title  Juridical  Encyclo- 
pedia. But  even  the  last  is  not  brought  up  abreast 
with  current  legislation.  Thus  in  the  1889  edition  the 
author  declares  that  our  legislation  contains  no  enact- 
ments concerning  Catholic  and  Protestant  churches, 
although  such  regulations  were  incorporated  into  the  code 
of  1857.  The  author,  and  this  is  more  strange,  employs 
the  edition  of  the  code  of  1857  even  for  questions  treated 
in  the  editions  of  1876  and  1886.  The  old  theories,  for 
example  Hegel's  distinction  between  the  false  in  criminal 
and  in  civil  matter,  are  accepted  as  absolute  verities. 
In  the  period  from  1870  to  1880  appeared  two  new 
works  upon  encyclopedia,  Karasevich's  Encyclopedia  of 
Law,  1872,  and  Delarov's  Outline  of  Encyclopedia  of 
Law,  1878,  but  they  remain  unfinished.  Karasevich 
had  one  fascicule  published,  containing  little  more 
than  the  preface.  Delarov's  work  according  to  the 
author's  plan  was  to  have  three  volumes.  In  the  first, 
law  is  considered  as  one  of  the  factors  of  social  life.  To 
speak  properly,  the  author  has  concerned  himself  little 
with  positive  law.  The  first  is  the  only  volume  pub- 
lished. The  other  two  which  have  not  appeared  were 
to  contain  an  exposition  of  the  general  theory  of  law, 
Vol.  1;  and  the  application  of  this  theory  by  means  of 
the  civil  law,  Vol.  2.  In  the  literature  of  other  countries 
are  scarcely  found,  so  far  as  I  know,  works  upon  legal 
"Encyclopadie."  Holland  must  be  excepted,  for  there 
is  found  Anne  den  Tex.  Encyclopaedic  Jurisprudentiae, 
1835,  and  also  the  Belgian  Roussel's  Encyclopedic  du 
droit,  1813.  Second  edition  at  Namur,  1874.  One 
might  also  cite  two  French  works,  Eshbach's  Cours 
d'introduction  generale  a  1'etude  du  droit  ou  Manuel 
d'encyclopedie  Juridique,  third  edition,  1856,  and 
Courcelle-Seneuil's  Preparation  a  1'etude  du  droit,  1897. 


INTRODUCTION  23 


PHILOSOPHY  OP  LAW 

MASARYK.       Versuch     einer     Konkrete     Logik,     1887.      Wundt 
Logik,  Section  619. 

HARMS.       Begriff     Formen     und     Grundlegung     der     Rechts- 
philosophie,  1889. 

BERGBOHM.     Jurisprudent  und   Rechtsphilosophie   1,    1892. 

Section  3.  With  the  ancients  philosophy  was  univer- 
sal science.  For  them  it  was  a  science  which  general- 
ized the  others  in  bringing  out  the  traits  common  to 
them.  So  Aristotle's  philosophy  embraces  mathematics, 
physics,  ethics  and  poetics.  What  the  author  called 
"primary  philosophy,"  irp^rrj  <£iXoo-o<£ia  and  his  ancient 
commentators  "metaphysics,"  because  it  followed  physics, 
had  as  object  the  study  of  the  fundamental  principles  of 
the  Universe.  The  word  "metaphysics"  indicated  to 
them  only  the  order  of  succession  of  Aristotle's  studies, 
but,  subsequently,  it  took  another  signification.  It  desig- 
nates a  priori  studies.  In  England  philosophy  still  usu- 
ally means  science  in  general,  as  with  Aristotle.  On  the 
continent,  however,  and  above  all  in  Germany,  philoso- 
phy means  a  particular  transcendental  view  both  of  the 
object  of  study  and  of  the  source  of  the  science.  As  to 
the  first,  it  regards  philosophy  as  the  science  of  supra- 
natural  phenomena;  for  example,  those  of  the  soul,  of 
the  supreme  cause  of  general  phenomena,  of  the  absolute, 
in  contradistinction  to  relative  knowledge  of  sensible 
phenomena.  As  to  the  second,  philosophy  can  have  the 
same  object  and  the  same  content  as  the  empirical  sci- 
ences on  condition  that  the  method  applied  to  the  study 
of  these  phenomena  be  not  empirical.  According  to  this 
method,  which  has  especially  prevailed  since  the  time  of 
Chr.  Wolf,  each  thing  can  be  the  subject  of  a  double 


24  THEORY  OP  LAW 

study,  one  empirical — finding  its  matter  in  sensible  ex- 
perience, the  other  philosophical — seeking  knowledge  of 
the  supra-sensible;  so,  for  example,  by  the  side  of  em- 
pirical science  of  nature  is  philosophy  of  nature,  and  by 
the  side  of  empirical  psychology  is  philosophic,  rational 
psychology,  etc. 

As  law  is  not  a  phenomenon  of  external  material 
nature,  but  one  of  the  consequences  of  man's  rational 
activity,  it  has  been  for  a  long  time  classed  among  the 
subjects  of  philosophical  research.  The  setting  forth  of 
the  idea  of  law,  the  determination  of  its  origin,  and  other 
such  questions,  are  studied  in  that  philosophy  styled 
"practical"  or  "ethical."  Antiquity  ignored  legal  phi- 
losophy as  a  distinct  branch,  in  the  same  way  in  which  it 
failed  to  recognize  elsewhere  the  divisions  of  science.  As 
for  the  middle  ages,  philosophy  of  law  as  a  distinct 
branch  of  learning  distinguished  from  ethics  appeared 
only  in  the  XVII  century.  Starting  with  the  XVII  cen- 
tury, it  passed  in  its  development  through  two  entirely 
distinct  phases.  At  first  the  philosophy  of  law  differed 
from  the  science  of  positive  law  not  only  by  its  method, 
but  by  its  very  object,  which  was  not  positive  law, 
variable  and  changeable  as  we  find  it,  but  the  in- 
variable, eternal,  natural  law  on  which  positive  law, 
it  was  thought,  should  rest.  It  was  only  at  the 
end  of  the  XVIII  century,  when  the  new  historical 
school  had  shown  the  insufficiency  of  the  conception 
of  natural  law,  that  philosophy  applied  itself  to  the 
explanation  of  positive  law.  Briefly,  the  philosophic 
study  of  law  was  known  to  the  XVII  and  XVIII  cen- 
turies under  the  name  of  natural  law — Jus  naturale, 
and  to  the  XIX  century  under  the  name  of  philosophy 
of  law. 

The  beginnings  of  natural  law  are  found  in  the  cele- 
brated treatise  of  the  learned  Hollander,  Hugo  Grotius, 
De  Jure  Belli  ac  Pacis  Libri  Tres,  1625.  The  fundamen- 


INTRODUCTION  25 

tal  idea  of  his  doctrine  is,  that  there  should  be  recog- 
nized beside  or  beneath  the  variable  positive  law  estab- 
lished by  the  will  of  God  or  of  men  (Jus  Voluntarium), 
an  invariable  natural  law  derived  from  the  nature  of  man 
regarded  as  a  reasonable  being,  and  especially  from  his 
inward  need  for  iiving  in  society.  (Appetitus  Societas.} 
"That  is  just,  '  proclaimed  Grotius,  "which  is  conformed 
to  the  nature  of  society  among  reasonable  beings.  Such 
law  is  absolutely  natural  and  independent  of  time  and 
place.  No  one  can  change  it.  It  would  exist  and  remain 
the  same  even  if  there  were  no  God." 

Grotius'  doctrine  was  presently  a  good  deal  extended 
Already,  in  the  XVII  century  some  new  theories  of  natu- 
ral law  appeared.  Such  was,  first,  the  theory  of  Thomas 
Hobbes  in  his  Elementa  Philosophica  de  Give,  1842, 
which  repeated  Grotius'  principle  of  sociability  and  rec- 
ognized as  humanity's  leading  trait,  fear,  upon  which  he 
established  his  fundamental  natural  law,  "Pax  est  Quas- 
renda."  Samuel  Puffendorf  applied  to  natural  law  the 
doctrine  of  the  Cartesians.  With  him  as  with  "Grotius 
the  principle  of  sociability  is  the  primary  natural  base. 
His  doctrine  was  very  popular  in  the  law  schools  of  the 
time  because  it  was  the  first  to  set  forth  natural  law 
according  to  a  well  ordered  system  and  also  because  he 
had  connected  his  theory  with  the  more  philosophic  doc- 
trine of  Descartes.  His  book,  De  Officiis  hominis  et 
Civis,  1673,  translated  into  several  Ianguage3,  became  a 
current  manual  of  natural  law. 

The  theories  of  the  XVII  century  did  not  yet  distin- 
guish morality  from  law,  at  least  from  natural  law.  So 
in  these  theories  the  opposition  between  natural  and  posi- 
tive law  is  not  yet  very  clear.  It  was  confused  with  the 
scarcely  recognized  distinction  between  law  and  morality. 
But  at  the  beginning  of  the  XVIII  century  Chr. 
Thomasius  first  distinguished  definitively  law  from  mo- 
rality. He  went  so  far  as  to  oppose  the  one  to  the  other, 


26  THEORY  OF  LAW 

giving  to  the  theory  of  natural  law  a  more  precise  and 
rigorous  character. 

Starting  from  this  time,  natural  law  is  only  law  as  op- 
posed to  moral  rules.  About  the  middle  of  the  XVIII 
century  Chr.  Wolf  and  his  disciples  gave  to  the  theory  of 
natural  law  a  systematic  form,  but  in  the  spirit  of  the 
doctrine  of  Leibnitz.  The  theorists  of  the  XVII  and 
XVIII  centuries  all  alike  employed  in  developing  the 
natural  law  a  deductive  method.  It  is,  however,  neces- 
sary to  observe  that  the  elements  on  which  they  build 
were  not  created  a  priori,  were  not  innate  ideas.  Kant 
(1714-1804),  in  his  Metaphysische  Anfangsgrunde  der 
Rechtslehre,  had  sought  to  give  to  the  theory  of  natural 
law  the  absolute,  a  priori  character,  which  it  lacked. 
He  deduced  all  its  principles  from  an  absolute  a  priori 
category  of  our  reason,  which  can  be  formulated 
in  the  following  terms:  Act  in  such  a  manner  that 
your  liberty  shall  accord  with  that  of  all  and  of 
each. 

The  doctrines  of  natural  law  penetrated  into  Russia 
at  the  commencement  of  the  XVIII  century.  That  of 
Puffendorf  was  particularly  esteemed.  In  1726  there 
was  printed  a  translation  of  his  book  made  by  order 
of  Peter  the  Great.  Ch.  F.  Gross,  professor  of  moral 
philosophy  at  the  academy  of  sciences  (1725-1731),  and 
the  first  professor  of  the  law  faculty  at  Moscow,  Diltei, 
used  this  book  in  their  classes.  From  1790  to  1800  Prof. 
Skiadan  used  it  also.  We  might  cite,  too,  an  original 
attempt  to  set  forth  the  theory  of  natural  law  by  V. 
Zolotnitsky  in  his  Abridgment  of  Natural  Law,  Ex- 
tracted from  Various  Authors  for  the  Use  of  Russian 
Society,  1764.  The  author  gives  as  the  foundation  of 
his  science  the  rule  "know  thyself,"  which  leads  us  to  a 
comprehension  of  our  dependence  upon  God,  and  our 
neighbor  and  the  necessity  of  guarding  our  own  preser- 
vation. 


INTRODUCTION  27 

However,  the  taste  for  the  doctrines  of  natural  law 
was  not  at  that  time  general.  On  the  contrary,  from 
1760  to  1770  one  observes  in  Russian  savants  a  tendency 
to  study  legal  history.  We  might  name  among  those 
who  showed  this,  Polenov,  and  especially  Diesnitzky,  the 
first  Russian  law  professor  to  criticise  the  theory  of  natu- 
ral law  severely  in  his  Opinion  Concerning  the  Most 
Direct  and  Shortest  Means  for  Studying  Jurisprudence. 
"The  work  of  Puffendorf  is  really  useless,"  says  he,  "for 
writing  upon  imaginary  states  of  mankind  without  show- 
ing how  property,  possession  or  inheritance  take  birth 
and  are  regulated,  does  not  answer  to  our  ideas  or  pur- 
poses." 

It  was  the  foreign  savants  who  contributed  to  spread- 
ing in  Russia  the  doctrine  of  Wolf.  Kant's  doctrine  rep- 
resents the  culminating  point  in  the  natural  law  theory 
in  its  first  phase.  He  presses  to  its  extreme  limits  the 
opposition  between  natural  and  positive  law.  But  at 
the  same  time  that  his  doctrine  was  spreading,  an  His- 
torical School  of  Legislation  was  forming  in  Germany, 
having  as  its  principal  representatives  Gustave  Hugo 
(1798-1844),  Fri.  K.  Savigny  (1779-1860)  and  Geo.  Fr. 
Puchta  (1798-1846).  This  school  declared  energetically 
against  the  existence  of  natural  law  as  a  special  norm 
having  its  place  beside  the  positive  law.  It  claimed  to 
show  that  all  law  is  a  historical  product  of  the  people's 
life,  that  it  is  not  created  by  the  will  of  a  legislator  and 
is  not  a  code  of  eternal,  absolute,  invariable  principles. 
According  to  this  school,  law  is  a  historic  element  in  the 
life  of  a  people,  capable  of  a  regular  evolution. 

The  blow  to  the  theory  of  natural  law  given  by  the 
historical  school  was  a  heavy  one.  In  philosophic  liter- 
ature, too,  a  reaction  appeared  against  the  extreme  ab- 
straction of  the  rationalist  doctrines.  With  Schelling 
(1775-1854)  the  philosophers  abandoned  the  study  of 
empty  abstractions,  to  turn  towards  concrete  and  living 


28  THEORY  OF  LAW 

realities.  In  opposition  to  the  abstract  systems  of  the 
rationalists  who  did  not  concern  themselves  with  con- 
crete reality,  contemning  the  positive  law  which  they 
considered  as  only  a  mutilation  of  the  eternal  principles 
of  natural  law,  Schelling  elaborated  his  system  of  posi- 
tive philosophy  which  was  to  explain  the  meaning  and 
inner  reason  of  all  that  exists.  The  late  representatives 
of  German  philosophy  followed  Schelling.  Among  them 
we  will  cite  the  three  who  have  had  most  influence  upon 
modern  philosophy  of  law:  Hegel,  Grundlinien  der 
Philosophic  des  Rechts,  1821 ;  Krause,  System  der  Rechts- 
philosophie,  1874,  and  Herbart,  Analytisch  Beleuchtung 
des  Naturrechts  und  der  Moral,  1836.  None  of  them 
maintain  the  existence  of  a  natural  law  by  the  side  of 
positive  law.  They  follow  a  different  purpose,  that  of 
comprehending  the  positive  law  in  its  historic  forms  and 
explaining  their  basis.  If  they  employ  still  sometimes 
the  words  "Natural  Law,"  they  no  longer  mean  the 
famous  code  of  natural  and  eternal  laws,  but  the  philo- 
sophic basis  for  positive  law.  The  disciples  of  Hegel 
(Michelet,  Gans,  L.  Stein,  Lasson,  Lassalle,  Max  Stirner), 
taking  for  starting  point  the  identification  of  laws  of 
being  with  laws  of  thought,  have  struggled  to  present 
the  development  of  different  systems  of  positive  laws  as 
a  dialectic  development  of  a  general  idea,  that  of  liberty. 
Krause's  disciples,  who  form  what  is  called  the  organic 
school  where  can  be  ranked  Roder,  Ahrens,  and  a  good 
many  Italian  writers  like  Pepere,  Lioy,  and  others,  think 
to  find  in  the  harmonious  development  of  the  individual 
the  definitive  ideal  towards  which  the  development  of 
positive  law  tends.  Lastly,  the  disciples  of  Herbart 
(Thilo,  Geyer,  Ziller)  seek  to  draw  all  the  great  variety 
of  historic  forms  of  law  from  two  ideas,  that  of  right,  re- 
sulting from  conflict,  and  that  of  justice  (remuneration), 
which  are,  according  to  them,  the  absolute  base  of  all 
which  we  deem  just  and  equitable. 


INTRODUCTION  29 

Among  all  these  schools  the  most  influential  one  in 
Russia  has  been  Hegel's.  Chitcherin  followed  it,  making 
original  applications  of  it :  History  of  Political  Doctrines, 
1878.  Property  and  Government,  1882-1883.  Principles 
of  Logic  and  of  Metaphysics,  1894. 

Although  the  philosophy  of  law  in  its  latest  form  has 
turned  towards  the  explanation  of  positive  law,  it  is, 
nevertheless,  not  to  be  confused  with  the  science  of  posi- 
tive law.  It  keeps  its  own  method.  It  employs  neither 
observation  nor  induction.  It  continues  to  suppose  that 
an  explanation  of  eternal  principles  of  positive  law  can 
be  given,  not  by  the  empirical  method,  but  by  way  of 
metaphysics  with  the  aid  of  principles  conceived  imme- 
diately by  our  reason  without  aid  from  experience.  It 
thinks  this  peculiarity  of  method  allows  philosophy  to 
reach  not  only  an  absolute  knowledge  of  law,  to  explain 
not  merely  legal  relations,  but  also,  the  profound  reasons 
of  the  law. 

The  conception  of  legal  philosophy  regarded  as  a  spe- 
cial science  supposes,  first,  the  possibility  of  a  knowledge 
not  founded  upon  any  experimental  system;  second,  the 
necessity,  or  at  least  desirability,  of  separating  the  a 
priori  elements  of  the  science  from  the  empirical  ones.  I 
do  not  wish  to  pass  upon  the  first  proposition.  It  belongs 
to  the  theory  of  knowledge,  a  theory  having  no  special 
connection  with  law  and  offering  still  a  vast  field  of  con- 
troversy. We  will  say  only  that  in  these  last  days,  the 
theory  of  knowledge  a  priori  is  more  and  more  corn- 
batted.  Whatever  opinion  one  adopts  as  to  the  theory 
of  knowledge,  I  do  not  think  it  possible  to  maintain  the 
necessity  of  a  legal  philosophy,  conceived  as  a  metaphys- 
ical science  of  law. 

If  metaphysical  knowledge  of  absolute  truth  is  possi- 
ble, why  separate  it  from  empirical  study  of  the  variable 
and  the  relative?  In  this  case,  the  relative  deserves 
study  as  a  special  manifestation  of  the  absolute.  The 


30  THEORY  OF  LAW 

metaphysical  knowledge  of  the  absolute  and  the  empiri- 
cal knowledge  would  both  gain  much  from  such  a  com- 
bination. The  notion  of  the  absolute  explained  by  the 
knowledge  of  the  special  and  relative  form  of  its  mani- 
festation would  become  more  concrete,  more  living. 
Knowledge  of  the  relative,  illuminated  by  understanding 
its  absolute  and  fundamental  principles,  would  become 
more  profound  and  more  rational.  This  is  why,  if  there 
are  several  methods  of  knowledge,  there  is  no  reason  for 
separating  them.  They  ought  all  to  be  combined  into  the 
scientific  study  of  the  object. 

Moreover,  it  is  necessary  to  declare  that  in  our  day  we 
are  more  and  more  led  to  refuse  to  admit  the  existence  of 
philosophy  as  a  special  metaphysical  science  bearing  upon 
the  elements  which  constitute  the  domain  of  the  empiri- 
cal sciences.  If  philosophy  has  still  pretensions  to  being 
a  special  and  independent  science,  it  is  not  as  an  a  priori 
knowledge  of  being,  but  as  a  theory  of  knowledge,  or  as  a 
general  theory  having,  nevertheless,  the  same  sources  as 
the  different  special  sciences.1 

1  Wallaschek  Studien  zur  Rechtsphilosophie  1889.  S.  107.  Die  Zuruck- 
fuhrung  des  in  der  Rechtsordnung  formulierten  Inhalts  auf  allgemeine  Denk- 
formen  ist  die  Aufgabe  der  Rechtsphilosophie,  sie  ist  die  Wissenschaft  vom 
Juristischen  Denken. 


INTRODUCTION  31 


THE  GENERAL  THEORY  OF  LAW 

MERKEL.  Ueber  das  Verhaltniss  der  Rechtsphilosophie  zur 
positiven  Rechtswissenschaft  (Grunhut's  Zeitschrift,  Sec.  1,  1874). 

SCHUETZE.  Die  stellung  der  Rechtsphilosophie  jur  positiven 
Rechtswissenschaft.  Id.  Sec.  6,  1879. 

BERGBOHM.  Jurisprudentz  und  Rechtsphilosophie,  1892.  Vol. 
1,  pp.  90-100. 

MUELLER.  Die  Elemente  des  Rechts  und  der  Rechtsbildung, 
1877. 

POST.  Bausteine  fur  eine  Allgemeinen  Rechtswissenschaft, 
1880. 

MERKEL.  Elemente  der  Allgemeinen  Rechtslehre,  1889. 
(Holtzendorff's  Encyclopadie  der  Rechtswissenschaft.) 

Section  4.  As  seen  in  the  last  section  we  maintain 
that  neither  the  encyclopedic  method  which  seeks  a  rem- 
edy for  the  excessively  fragmentary  condition  of  our  sci- 
ence in  a  review,  superficial  it  is  true,  of  the  whole  of  it 
in  all  its  branches,  nor  the  philosophic  system  which 
attempt  to  find  the  deepest  source  of  the  science  in  some 
a  priori  principles,  have  reached  their  object.  In  our 
day  no  one  any  longer  believes  they  can.  Both  the  ency- 
clopedic and  the  philosophic  literature  of  the  law  are 
going  through  a  phase  of  decadence.  Philosophy,  which 
was  conceived  as  a  science  having  its  own  peculiar  source 
and  distinct  method,  is  regarded  in  our  time  as  a  more 
general  science,  but  one  supporting  itself  by  experimental 
proofs  like  all  the  rest.  Its  actual  task  extends  only  to 
the  generalization  of  materials  furnished  b}^  the  various 
special  sciences. 

Consequently,  the  philosophy  of  law,  the  metaphysical 
science  of  absolute  legal  principles,  is  replaced  little  by 
little  with  general  theory  of  law,  which  has  as  its  base 
positive  and  historic  proofs.  This  tendency  is  very 
marked  in  England  where  it  is  known  under  the  name  of 


32  THEORY  OF  LAW 

the  analytical  school.  John  Austin  is  considered  its 
founder  with  his  Province  of  Jurisprudence  Determined, 
1832,  and  Lectures  on  Jurisprudence  or  Philosophy  of 
Positive  Law,  3d  Edition,  1869.  He  has  at  the  present 
time  a  good  many  followers.1 

In  Germany,  too,  the  necessity  of  replacing  metaphys- 
ical construction  by  a  general  theory  of  positive  law  is 
recognized.  As  early  as  1820-1830  Falk  had  demon- 
strated the  need  of  the  change.  In  contemporary  Ger- 
man literature  this  view  is  especially  sustained  by  Merkel, 
who  thinks  it  absolutely  necessary  to  eliminate  from  all 
serious  study  of  the  law,  that  of  the  metaphysical  phi- 
losophy of  it,  or  at  least  no  longer  to  recognize  it  as 
drawing  its  proofs  from  any  special  source.  It  is  to  be 
considered  only  as  general  theory  with  the  rank  such 
theory  holds  in  all  other  sciences.  Meanwhile,  this  opin- 
ion has  not  been  approved  by  all  the  world.  It  meets 
numerous  adversaries  who  present  various  objections. 
Schutze,  for  example,  defends  the  old  separation  be- 
tween positive  law  and  the  philosophy  of  law.  Accord- 
ing to  him  Merkel's  general  theory  is  "Encyclopadie." 
"The  philosophy  of  law  is  a  branch  of  practical  philoso- 
phy, that  is,  of  that  philosophy  which  applies  deduc- 
tively the  formal  laws  of  thought  to  the  establishing  of 
the  absolute  and  its  ideal  content.  It  is  precisely  that 
part  which  is  to  concern  itself  with  law  in  drawing  it 
out  from  a  higher  conception  and  studying  it  in  its 
logical  development."  This  sufficiently  obscure  distinc- 
tion Schutze  explains  by  some  examples  which  show  in 
what  consists  for  him  the  difference  between  a  philo- 
sophic, and  a  positive  study  of  legal  institutions.  For 
this  purpose  he  passes  in  review  the  most  important  in- 
stitutions, contract,  property,  the  state,  and  penalties. 
"For  the  lawyer  or  the  historian,"  said  he,  "the  obliga- 

1  Markby,    Elements   of   Law.      1871.      Holland,    Elements   of   Jurisprudence. 
1880.     10th  Edition.     1906.     Pollock,  Essays.     1882.     Passim. 


INTRODUCTION  33 

tory  force  of  a  contract  is  a  fixed  fact,  a  principle,  an  in- 
contestable result.  The  philosopher,  however,  cannot 
pass  over  in  silence  the  preliminary  questions.  Are  con- 
tracts obligatory  and  if  so  what  is  the  basis  of  their  ob- 
ligatory force?  In  the  same  way  for  private  property, 
the  philosopher  asks  to  what  point  it  agrees  with  the 
idea  of  law — and,  above  all,  with  the  equal  claim  of  all 
men  to  the  means  of  satisfying  their  necessities.  The 
lawyer  and  historian  meet  only  by  chance  with  such 
questions  along  their  way.  In  the  same  way,  as  to  the 
state,  the  philosophy  of  law  asks  these  questions:  Is 
the  existence  of  the  state  a  rational  need  or  only  a  histor- 
ical product?  What  form  of  government  is  best  con- 
formed to  reason  ?  Does  government  in  essence  rest  upon 
contract?"  etc. 

But,  even  these  examples  are  not  satisfying  proofs. 
Without  being  able  to  claim  to  give  a  complete  solution 
to  these  questions,  positive  law,  to  the  extent  which  it 
involves  them,  is  compelled  to  find  some  solution  for 
them.  The  lawyer  must  ask  what  are  the  conditions  of 
the  validity  of  contracts.  It  is  impossible  to  explain 
these  conditions  without  setting  forth  the  basis  of  their 
obligatory  force.  On  the  other  hand  it  is  useless  to  ask 
such  questions  as  what  form  of  government  conforms 
best  to  reason,  for  one  cannot  estimate  the  different 
forms  of  government  without  taking  into  consideration 
the  historic  conditions  of  the  times.  The  fact  appears 
that  juridico-philosophical  literature,  so  understood,  is 
falling  more  and  more  into  decadence,  and  is  replaced  by 
investigations  upon  general  questions  of  law.  These  in- 
vestigations bear  upon  the  study  of  the  historic  and  posi- 
tive elements  and  make  no  claim  to  find  the  solution  of 
deep  legal  problems  in  metaphysical  science.  So,  we 
think  ourselves  authorized  in  considering  as  superannu- 
ated and  abandoned  the  idea  formerly  held  of  the  pur- 
pose of  legal  philosophy.  The  future  belongs,  in  our 


34  THEORY  OF  LAW 

opinion,  to  the  philosophy  of  law  considered  only  as  gen- 
eral theory  of  law. 

But  if  we  identify  philosophy  of  law  with  its  general 
theory,  how  does  it  differ  from  encyclopedia  of  law?  Are 
they  to  be  confounded?  What  will  the  philosophers  say 
to  that?  Thus,  Friedlander  in  showing  the  scientific  im- 
portance of  the  encyclopedia  of  law  affirmed  that  legal 
philosophy  could  not  exist  by  its  side  as  a  distinct  sci- 
ence. In  Russia,  it  was  Prof.  Karasevich  who  first  as- 
serted the  necessity  of  identifying  philosophy  of  law  and 
its  encyclopedia. 

In  Germany,  this  opinion  is  not  generally  admitted. 
The  German  jurists  are  so  much  in  the  habit  of  separat- 
ing the  two  that  Merkel  himself,  who  demanded  so  reso- 
lutely that  philosophy  of  law  be  replaced  by  its  general 
theory,  believed  in  the  independent  existence  of  an  En- 
cyclopedia of  Law,  meaning  an  abridgment  of  all  branches 
of  the  law,  embracing  in  it  a  general  theory  of  the  law. 
But,  "  Encyclopadie "  thus  understood  has  no  longer  the 
character  of  an  independent  science. 

In  Russian  literature  there  are  some  jurists  who  pro- 
nounce for  maintaining  the  distinction  between  philoso- 
phy and  encyclopedia  of  law.  Prof.  Zveriov,  notably,  is 
of  this  opinion.  According  to  him  the  encyclopedia  of 
law  has  no  subject  of  study  of  its  own.  It  borrows  nearly 
all  its  materials  from  philosophy.  It  is  for  him  an  in- 
complete repetition  of  the  philosophy  of  law.  It  does 
not  reproduce  the  whole  of  legal  philosophy.  It  takes 
of  it  only  what  is  strictly  necessary  to  serve  as  an  in- 
troduction to  instruction  in  the  law.  The  philosophy  in 
his  opinion  is  an  independent  science,  while  encyclopedia 
is  only  a  form  of  instruction.  It  is  the  incomplete  copy 
whose  original  is  philosophy.  Conceived  as  an  intro- 
duction to  the  juridical  sciences,  composed  of  materials 
which  the  philosophy  of  law  furnishes  to  it,  encyclo- 
pedia presents  to  us  throughout  definite  results  so  far 


INTRODUCTION  35 

as  this  is  possible  in  the  present  situation  of  legal  knowl- 
edge. Philosophy,  on  the  contrary,  makes  of  these  same 
matters  the  object  of  its  researches  and  studies  juridical 
norms  in  the  process  of  their  formation. 

" Encyclopadie "  affirms  and  sets  forth;  philosophy  dis- 
cusses and  studies.  The  one  is  dogmatic,  the  other 
critical.  If  encyclopedia  proposes  to  prepare  the  be- 
ginner for  the  study  of  the  special  legal  sciences,  the  phi- 
losophy of  law  seeks  to  be  the  conclusion  of  his  studies. 
If  the  first  serves  to  trace  a  plan  for  study,  and  show 
the  route  to  be  taken,  the  second  is  to  give  a  general 
view  of  what  has  been  done  as  a  whole,  to  set  in  order 
the  acquired  knowledge  and  to  take  account  of  the 
work  accomplished. 

Zveriov's  opinion  does  not  fail  to  leave  some  diffi- 
culties. At  the  very  start  can  we  be  satisfied  to  define 
encyclopedia  as  an  object  of  instruction  and  to  oppose 
it  as  such  to  philosophy  as  a  science?  Is  not  science, 
then,  an  object  of  instruction?  Zveriov  means,  prob- 
ably, that  encyclopedia  is  only  a  special  means  of  giving 
instruction  in  legal  philosophy;  but  even  with  this 
correction  his  conclusion  raises  some  doubts.  He  claims 
that  encyclopedia  gives  a  dogmatic  exposition  of  some 
questions  as  to  which  philosophy  presents  a  critical 
study.  He  adds  even  that  encyclopedia  exhibits  results 
without  showing  the  means  which  obtained  them.  We 
do  not  believe  he  means  to  say  by  this  that  it  ought  to 
proceed  by  simple  affirmations.  Such  a  bad  method  for 
any  kind  of  instruction  is  especially  so  for  university 
teaching. 

We  believe  that  he  wished  to  say  that  encyclopedia, 
without  insisting  upon  the  differences  which  separate 
the  schools,  applies  itself  generally  to  setting  forth  fixed 
doctrines  of  systems  as  wholes.  In  this  sense  we  can 
say  that  it  prefers  the  dogmatic  to  the  critical  method. 
But  even  when  so  presented  his  observations  raise 


36  THEORY  OF  LAW 

objections.  The  choice  of  one  or  the  other  method  is 
not  left  free.  If  for  a  given  question  there  is  as  yet  no 
theory  accepted  by  the  scientific  world,  we  must  be 
satisfied  with  expounding  controversies. 

So  we  cannot  consider  the  philosophy  of  law  as  a 
science  distinct  from  the  encyclopedia  of  it.  They  are 
but  one.  They  are  only  transition  phases.  They  are 
but  preliminary  elements  of  one  discipline,  the  general 
theory  of  law.  The  usefulness  of  a  general  theory  of 
law  was  long  ago  recognized,  but  it  was  imagined  that 
it  could  exist  beside  the  encyclopedia  without  being 
absorbed  by  this  last.  Such  is  notably  Falk's  opinion. 
He  proposed  to  replace  natural  law  by  a  general  theory 
of  law,  that  is,  by  an  exposition  of  the  general  prin- 
ciples resulting  from  analysis  of  positive  law.  But  at 
the  moment  this  conception  was  brought  forth  it  could 
hardly  survive.  Only  in  our  day  does  it  begin  to  be 
admitted. 

Miiller  develops  it  in  considerable  detail.  He  pre- 
sents the  general  theory  of  the  law  as  a  system  of  prin- 
ciples of  law, — System  der  Rechtsgrunde.  Without  speak- 
ing of  direct  practical  utility  for  legal  science,  it  has 
a  double  task  to  perform.  First,  it  studies  the  varie- 
ties of  the  facts,  systematizing  them  and  applying  to 
them  different  methods, — speculative-idealistic,  histor- 
ical, and  empirico-realistic.  Second,  from  the  mate- 
rial of  law  thus  constituted  it  derives  the  general  prin- 
ciples, combines  them  according  to  their  intrinsic  nature 
and  makes  of  them  a  system  which  is  the  general  theory 
of  the  law.  Once  the  leading  principles  are  isolated 
they  are  applied  to  the  estimating  of  existing  law,  to 
show  and  clear  up  at  the  same  time  the  path  of  evolu- 
tion. The  general  theory  of  law  evidently  cannot  have 
direct  application  to  life,  for  it  contains  only  general 
principles  and  not  the  distinct  juridic  rules  which  con- 
trol the  relations  of  daily  life.  Moreover,  it  is  impos- 


INTRODUCTION  37 

sible  to  derive  a  science  of  practical  law  from  the  prin- 
ciples of  general  theory.  The  evolution  of  law  has  for 
its  starting  point  natural  elements, — the  relations  of  life. 
The  theorist  draws  his  general  notions  from  the  study  of 
these  relations,  and  of  the  practical  law  to  which  they 
have  given  birth.  He  ought  to  conceive  as  a  whole  the 
system  of  practical  rules  and  of  legal  relations  of  daily 
life,  and  then  to  decompose  this  general  organism  into 
its  organs  and  distinct  elements,  to  determine  their 
relations  and  reciprocal  influence,  the  norms  and  the 
purposes  of  their  action,  as  well  as  the  role  of  the  whole 
and  of  each  of  the  parts.  The  general  theory  of  law 
verifies  everywhere  the  positive  law  from  the  technical 
and  logical  point  of  view,  shows  the  internal  connection, 
the  essence  of  the  social  organism,  and  refers  them  to  the 
general  principles  of  human  activity  in  society  and  the 
state.  It  is  thus  the  keystone  of  jurisprudence.  It 
binds  into  a  whole  the  separate  parts  and  their  diverse 
contents.  To  attain  this  object  it  ought  to  observe 
rigorously  the  objective  method,  and  avoid  all  subjec- 
tive construction.  If  in  our  day  some  general  considera- 
tions precede  the  study  of  the  different  categories  of 
legal  training,  it  is  because  we  have  not  yet  a  suitable 
theory  of  law,  and  each  jurist  finds  the  need  of  setting 
forth  some  of  his  own  opinions  concerning  it. 

In  this  way  Albert  Post  believed  that  the  development 
of  law,  conceived  as  one  of  the  branches  of  positive 
social  science,  will  have  as  a  result  the  fusing  of  history 
and  philosophy.  Only  the  general  study  of  law,  eine 
allgemeine  Rechtswissenschaft,  can  subsist  at  the  side 
of  the  history  of  the  law.  It  will  have  an  empirical 
character  when  it  is  studying  the  phenomena  of  juridical 
life,  a  philosophic  character  when  studying  the  causes 
of  those  phenomena.  But  the  two  parts  of  jurispru- 
dence, history  and  theory,  ought  to  be  closely  bound 
together. 


38  THEORY  OF   LAW 

Muller  and  Post  in  imagining  the  role  of  general 
theory  of  the  law  did  not  examine  its  relations  to  ency- 
clopedia. The  first  German  jurist  who  is  pronouncedly 
in  favor  of  their  identification  is  Schutze.  In  his  course 
on  the  encyclopedia  of  law  he  conformed  to  this  idea, 
as  his  printed  plan  for  the  course  shows.  The  lectures 
themselves  were,  unfortunately,  not  published. 

In  our  day  nearly  all  Russian  encyclopedists  recognize 
the  necessity  of  identifying  encyclopedia  and  general 
theory  of  law.  At  least,  all  the  printed  courses  on 
"Encyclopadie,"  except  those  of  Nivoline  and  of  Rojest- 
vensky,  present  only  the  general  study  of  law.  Kapous- 
tine,  even,  replaces  the  name  "Encyclopadie"  with  that 
of  "General  Dogmatics."  But,  as  Karasevich  rightly 
says,  this  terminology  is  not  well  chosen,  for  dogma  is, 
as  all  the  world  agrees,  opposed  to  history,  and  means 
an  applied  science  of  law. 

This  difference  between  the  Russian  encyclopedias 
and  the  German  ones,  the  best  and  most  systematic  of 
which — for  example,  Falks's,  Walter's,  Ahrens',  Warn- 
konig's  and  Merkel's — are  only  brief  expositions  of  the 
separate  juridical  sciences  preceded  by  a  short  general 
introduction;  this  difference,  we  say,  is  explained  by  the 
conditions  of  our  legal  instruction.  In  Germany,  instruc- 
tion in  law  consists  simply,  according  to  Stein's  state- 
ment, in  some  studies  in  civil  law  in  its  different  mani- 
festations. The  other  branches,  one  may  say,  are  not 
tolerated.  There  is  no  occasion  to  be  astonished,  then, 
that  there  is  no  general  theory  of  the  law,  but  only  a 
brief  exposition  of  civil  law,  Roman  or  German,  and 
sometimes,  as  in  Putter,  Ahrens,  and  Warnkonig,  the 
general  history  of  law.  Things  do  not  go  the  same  in 
our  universities.  The  civil  law  has  never  predominated. 
Since  Peter  the  Great,  legal  and  political  instruction 
have  been  combined.  For  this  reason  the  Russian  ency- 
clopedist cannot  put  into  his  course  a  rapid  exposition 


INTRODUCTION  39 

of  all  which  is  taught  in  the  law  faculties.  The  matters 
being  very  diverse,  even  a  brief  resume  of  them  would 
be  something  too  complex.  The  conditions  of  our 
university  instruction  require  of  an  encyclopedist  not 
a  resume  of  the  special  sciences,  but  a  general  theory 
of  the  law. 


BOOK  I 

THE   CONCEPTION  OF  LAW 

CHAPTER  I 
THE  DEFINITION  OF  LAW 

Section  5.     Technical  and  Ethical  Norms 

Endowed  with  a  faculty  of  generalization  which  be- 
longs to  us  in  our  capacity  as  reasonable  beings,  we  are 
guided  in  our  conscious  activity  not  only  by  concrete 
notions,  but  also  by  rules  which  indicate  the  line  of  con- 
duct necessary  to  follow  to  attain  such  or  such  a  desired 
end.  These  rules  which  depend  upon  the  nature  of  the 
proposed  end  bear  the  general  name  of  "norms."  They 
vary  with  their  ends,  but  all  unite  in  two  leading  groups, 
technical  and  ethical  norms. 

Technical  norms  are  rules  which  indicate  the  manner 
of  acting  in  order  to  attain  a  determinate  end.  Such  are 
rules  of  hygiene,  of  pedagogy,  of  grammar,  of  architec- 
ture, which  teach  us  to  preserve  our  health,  to  develop  the 
faculties  of  an  infant,  to  express  our  ideas  in  an  intelli- 
gible manner,  to  build  a  house.  There  are  as  many  tech- 
nical norms  as  there  are  different  ends  sought  by  men. 
Observation  of  each  of  them  brings  only  the  realiza- 
tion of  a  single  given  end  without  assisting  towards 
the  other  ends  of  human  activity,  and  sometimes  even 
hindering  their  realization.  If  the  end  pursued  is  vast 
and  complex,  its  realization  is  naturally  determined  by 
a  complicated  system  of  rules  bound  together  by  the 
unity  of  the  end.  The  systems  of  this  kind  form  so 
many  distinct  arts.  Thence  comes  the  name, — technical 
norms. 

Distinct  technical  norms  correspond  to  the  different 
objects  of  human  activity;  this  is  why  men  act  always 

41 


42  THEORY  OF  LAW 

conformably  to  their  ends.  Each  separate  technical  norm 
follows  a  single  determinate  end  and  leads  to  a  realiza- 
tion of  a  single  distinct  purpose  without  entangling  con- 
nections with  others.  At  the  same  time,  however,  the 
different  ends  of  human  activity  struggle  together  inevi- 
tably. The  realization  of  one  impedes  often  that  of  an- 
other. The  man,  limited  in  strength,  in  external  forces, 
and  in  time,  must  give  up  the  complete  realization  of 
his  purposes.  It  is  necessary  for  him  to  sacrifice  secon- 
dary objects  to  attain  leading  ones.  Obliged  thus  to 
choose  between  different  ends  man  cannot  do  without  a 
guiding  principle  to  show  the  line  of  conduct  to  follow, 
the  ends  to  sacrifice,  and  those  to  which  the  preference 
is  to  be  given.  The  technical  norms  cannot  answer  this 
need.  Showing  the  way  to  realize  a  given  end,  they  do 
not  give  rules  intended  to  introduce  harmony  into  the 
realization  of  several  ends.  So  there  exist,  besides  the 
technical  norms,  some  of  a  different  kind,  the  ethical 
ones.  Man  cannot  guide  himself  through  life  merely  by 
technical  norms  suited  only  to  the  attaining  of  separate 
ends.  He  is  guided  necessarily  by  another  principle 
which  determines  the  choice  of  ends  themselves.  Accord- 
ing as  men  are  more  or  less  capable  of  realizing  this  or 
that  specific  end  we  estimate  their  capacity  in  the  given 
art.  According  to  their  manner  of  comprehending  the 
mutual  relations  of  these  ends  and  by  their  choice  of 
them  we  judge  of  their  morals,  of  what  the  Greeks  ex- 
pressed by  the  word  (rjdos).  So  the  rules  which  deter- 
mine the  correlation  of  the  different  ends  of  human  ac- 
tivity are  called  "ethical." 

According  to  what  has  been  said  the  distinction  be- 
tween technical  and  ethical  norms  may  be  formulated 
thus.  Technical  norms  are  the  rules  directly  applicable 
to  the  realization  of  the  distinct  ends  of  human  activity, 
ethical  norms  to  the  realization  simultaneously  of  all 
human  ends. 


THE  CONCEPTION  OF  LAW  43 

Certainly  we  must  conclude  from  this  that  ethical 
cannot  replace  technical  norms.  They  have  not  the 
force  of  a  general  technical  rule  and  cannot  be  applied 
directly  towards  the  realization  of  a  distinct  and  sepa- 
rate end.  Observation  of  ethical  rules  does  not  lead 
directly  to  the  accomplishment  of  any  single  practical 
purpose.  That  is  always  effected  by  conformity  to  tech- 
nical rules.  Ethical  rules  act  only  in  the  delimitation, 
so  to  speak,  of  separate  ends,  not  their  realization,  only 
in  determining  their  mutual  correlation.  They  render 
possible  the  realization  of  several  ends  simultaneously 
by  defining  their  "form,"  the  formal  side  of  their  recip- 
rocal connections,  but  these  objects  themselves  are  real- 
ized only  in  conformity  with  rules  suited  to  their  intrinsic 
nature.  In  this  sense  ethical  norms  are  distinguished 
from  technical  ones  as  formal  from  material  norms. 
Their  observance  only  adds  to  the  mutual  correlation  of 
ends  a  harmonious  form,  but  does  not  advance  the  reali- 
zation of  their  content. 

Technical  rules  are  as  numerous  as  the  ends  which 
life  assigns  to  us.  The  men  who  pursue  distinct  ends 
are  guided  by  different  technical  norms.  On  the 
other  hand,  ethical  norms,  which  preside  not  at  the 
realization  of  separate  ends,  but  over  the  determina- 
tion of  the  relations  constituting  the  combination  of 
ends,  do  not  vary  with  the  nature  of  the  end  pursued  at 
a  given  moment.  The  same  person  does  not  have 
different  ethical  rules  for  the  different  circumstances 
of  his  life.  Ethical  rules  determine  the  connection  of 
different  ends.  They  are  necessarily  the  same  for 
all  the  manifestations  of  human  activity,  for  all 
the  circumstances  of  life.  Thus,  ethical  norms  are 
characterized  by  unity  and  technical  norms  by  va- 
riety, by  plurality.  The  same  man  at  the  same 
time  may  be  controlled  by  the  most  diverse  technical 
rules. 


44  THEORY  OF  LAW 

If  technical  rules  are  those  indicating  means  for 
attaining  determinate  ends,  their  observance  ought  to  be 
optional.  All  depends  here  upon  the  value  assigned  to 
the  end  pursued,  whose  realization  is  sought  in  accord- 
ance with  a  certain  rule.  Only  he  who  counts  his  health 
important,  will  observe  hygienic  rules.  No  one  would 
recommend  them  to  a  man  who  was  seeking  to  put  an 
end  to  his  life  or  destroy,  scientifically,  his  health.  On 
the  other  hand,  the  man  finds  himself  bound  to  yield 
to  a  rule  which  establishes  the  harmony,  the  desired 
unity,  between  the  different  objects  which  solicit  his  ac- 
tivity. If  I  have  several  ends  to  realize,  it  is  impossible 
not  to  wish  that  there  be  harmony  between  them.  Only 
the  man  attacked  with  mania  concentrates  himself  upon 
a  single  one.  The  man  enjoying  normal  health  as- 
signs always  several  ends  for  his  activity.  That  the 
harmonious  simultaneous  realization  of  several  ends  is 
desired  by  most  men,  admits  of  no  doubt,  so  there  can 
be  no  doubt  of  the  obligation  to  observe  the  rules  of 
ethics.  Therefore,  technical  norms  are  optional  and  eth- 
ical ones  obligatory. 

It  is  not  simply  their  obligatory  character  which  dis- 
tinguishes ethical  from  technical  norms.  If  a  technical 
rule  is  not  observed,  there  results  only  that  a  given  end 
is  not  attained.  That  is  all.  This  negligence  has  no 
influence  upon  the  rest  of  the  man's  activity.  I  have 
cultivated  my  field  badly,  but  perhaps  I  can  build  a 
house.  A  bad  farmer  may  be  a  good  pedagogue.  Inob^ 
servance  of  ethical  rules,  however,  disturbs  our  whole 
activity  by  destroying  the  harmony  which  guides  it. 
The  consequences  of  the  violation  of  ethical  norms  are 
always  felt.  They  have  their  counter  stroke  in  all  our 
affairs  and  prevent  us,  often,  from  attaining  the  most 
important  ends.  When  we  are  conscious  that  the  com- 
plete violation  of  ethical  norms  has  placed  us  beyond  the 
possibility  of  realizing  for  the  future  other  human  objects 


THE   CONCEPTION   OF  LAW  45 

of  the  highest  kind,  we  experience  remorse,  and  recognize 
thereby  the  imperative  character  of  these  rules.  To 
this  interior  sanction  has  been  added  another  one  out- 
side. The  violation  of  technical  rules  brings  only  the 
stopping  of  a  given  enterprise,  and,  consequently, 
touches  only  the  persons  interested  in  the  affair.  Who- 
ever does  not  follow  these  rules,  we  call  unskillful 
or  imprudent,  but  the  matter  does  not  directly  concern 
us.  It  does  not  matter  to  us  whether  the  technical 
rule  is  observed  or  not.  On  the  contrary,  the  violation 
of  ethical  rules  brings  into  play  the  general  interest. 
All  human  interests  turn  upon  two  main  centres,  the 
individual  and  society.  Every  ethical  system,  what- 
ever be  its  characteristic  principle,  determines  neces- 
sarily the  connections  of  these  two  categories  of  human 
interests.  Society  cannot  remain  indifferent  if  ethical 
norms  are  violated,  if  the  harmony  of  human  ends  does 
not  exist,  if  personal  and  social  interests  conflict.  What- 
ever violates  ethical  norms  provokes,  infallibly,  the 
disapprobation  of  society,  which  is  interested  in  the  ex- 
istence of  a  certain  relation  between  the  purposes  of 
individual  men  and  collective  social  purposes.  Society 
wishes  each  member  to  observe  moral  rules;  it  condemns 
those  violating  them,  and,  in  grave  cases,  even  proceeds 
to  punish  them.  Observance  of  moral  rules  is  not  then 
left  to  the  subjective  judgment  of  the  individual.  It  has 
the  character  of  an  objective  obligatory  rule,  of  an  im- 
perative order. 

But,  if  we  consider  the  content  of  technical  and  moral 
norms,  the  connection  between  the  two  is  going  to  ap- 
pear under  a  different  aspect.  In  their  content  technical 
norms  are  objective.  In  fact,  to  act  conformably  to  a 
given  end,  is  to  employ  the  forces  of  nature  to  effectuate 
that  end  But  the  action  of  nature's  forces  is  always 
rigorously  constant.  This  is  why  if  the  law  of  a  given 
group  of  phenomena  is  known,  the  corresponding  tech- 


46  THEORY  OF  LAW 

nical  rules  will  be  the  logically  inevitable  consequences 
of  that  law.  For  example,  the  rules  of  architecture  are 
the  logically  inevitable  consequences  of  the  laws  of 
mechanics.  For  technical  norms,  the  choice  once 
made  of  some  determined  end,  are  the  rules  of  its  reali- 
zation, and  are  indicated  of  themselves,  as  inevitable 
consequences  of  the  law  of  the  corresponding  phenomena. 
It  results  that  the  content  of  technical  rules  is  deter- 
mined by  objective  facts,  except  as  to  the  connection 
between  the  man  and  these  rules.  If,  sometimes,  tech- 
nical norms  are  insufficiently  determined  objectively, — 
for  example,  the  rules  of  pedagogy, — it  is  only  because 
the  laws  of  the  corresponding  phenomena  have  not  been 
ascertained  with  the  needed  precision, — in  the  case  given, 
the  laws  of  the  mental  life.  The  law  of  the  phenomena 
being  known,  there  can  be  no  doubt  as  to  the  corre- 
sponding technical  norm. 

It  is  altogether  different  with  ethical  norms.  They  are 
never  presented  as  inevitable  consequences  of  a  law. 
The  rule  to  adopt  for  controlling  the  relations  between 
different  ends  of  human  activity  is  conditioned  by  a 
series  of  absolutely  subjective  circumstances  which  are 
extremely  variable.  Each  man  has  his  objects,  appre- 
ciates them  subjectively,  and  settles  according  to  his 
taste  their  reciprocal  relations.  What  is  secondary  for 
one  may  constitute  the  chief  end  in  life  for  another.  Per- 
sonal tendencies,  theoretic  ideas,  religious  beliefs,  social 
customs,  all  these  factors  alter  to  infinity  human  inter- 
ests and  the  relations  among  them.  It  is  not  logical  con- 
sequences of  a  certain  conception,  but  rather  sentiments, 
which  determine  the  relations  which  we  establish  be- 
tween the  different  ends  of  our  activity.  The  content  of 
ethical  norms  has  necessarily  a  subjective  character.  It 
is  marked  by  the  existence  of  many  shades.  It  is  always 
an  object  of  controversy.  We  cannot  base  it  upon  rigor- 
ously logical  arguments,  carrying  to  all  the  evidence  of 
incontestable  truth. 


THE   CONCEPTION   OF  LAW  47 


Section  6.    Legal  and  Moral  "Norms" 

We  have  just  shown  the  difference  between  two  lead- 
ing categories  of  norms,  the  technical  and  the  ethical. 
With  which  shall  we  rank  legal  ones?  The  answer 
is  not  doubtful.  Juridical  norms  present  all  the  char- 
acteristics of  ethical  norms.  The  observance  of  rules 
of  law  is  not  directly  necessary  to  any  material  end. 
Law  only  outlines  the  frame  for  the  various  material 
interests  and  activities,  forming  the  content  of  social 
life.  At  the  same  time,  the  observance  of  juridical 
norms  is  acknowledged  as  binding  on  all,  independ- 
ently of  its  desirability  for  this  or  that  special  end.  In 
short,  the  content  of  law  is  not  simply  the  inevitable 
logical  consequence  of  natural  laws,  as  is  evident  from 
the  fact  of  the  variety  and  even  contradictoriness  of 
legal  rules  existing  in  different  times  and  countries. 
But  juridical  norms  are  not  the  sole  ethical  norms.  By 
their  side  are  moral  ones.  For  the  exact  definition  of 
legal  rules  they  must  be  separated  from  moral  ones. 
To  that  end,  we  shall  try  to  show  how  it  is  generally 
possible  to  effect  the  combination  and  harmony  of  the 
various  interests  of  human  life.  From  this  of  itself  will 
be  obtained  the  main  division  of  ethical  norms,  their 
separation  into  morality  and  law. 

Full  and  unlimited  realization  of  each  of  man's  differ- 
ent aims  is,  in  view  of  his  limited  strength  and  means, 
impossible.  He  is  compelled  to  limit  the  accomplish- 
ment of  some  purposes,  even  to  renounce  some  alto- 
gether. He  must  make  a  choice  among  his  different 
ends,  separate  them  one  from  the  other,  estimate  one 
as  more  important,  another  as  less  so;  in  a  word,  the 
relative  appraisal  of  interests  is  unavoidable.  Without 
such  moral  appraisal  one  could  not  guide  himself  in  the 


48  THEORY  OF  LAW 

multiplicity  of  interests  so  varied  and  conflicting,  could 
not  recognize  the  importance  of  one  aim  over  another. 
This  appraisement  of  values  determines  their  prefer- 
ence. But  this  appraisement  of  aims  and  interests 
belongs  to  morality.  However  different  the  moral  prin- 
ciples advanced  by  different  theories,  all  agree  in  pro- 
posing a  criterion  by  the  aid  of  which  different  interests 
in  competition  can  be  weighed.1 

In  this  function  of  fixing  the  relative  importance  of 
interests  centre  all  the  moral  theories.  Whether  we 
deduce  moral  rules  from  utility,  truth,  harmony,  beauty, 
pity,  love  or  innate  feeling  independent  of  all  morality, 
matters  'ittle.  The  difference  of  foundations  upon 
which  moral  theories  rest  produces  divergences  in  the 
criteria  which  they  use,  but  all  the  theories  forever 
result  in  the  elaboration  of  some  criterion,  which  is  the 
dist'nctive  and  indispensable  mark  of  the  theory  pro- 
ducing it.  The  moral  rules  determine  rigorously  the  dis- 
tinction between  good  and  evil,  between  what  is  to 
be  done  and  what  is  not  to  be  done,  between  moral 
and  immoral  ends.  They  present  the  higher  principles 
which  direct  our  whole  activity,  the  criteria  for  all  our 
actions. 

The  isolated  man,  outside  of  social  life,  may  subordi- 
nate his  activity  to  moral  rules.  Nothing,  indeed,  pre- 
vents his  establishing  a  harmony  between  the  different 
ends  whose  realization  he  seeks,  after  estimating  their 
respective  values.  Good  and  evil  appear  in  gradations. 
Good  ends  and  bad  are  ranged  in  a  definite  order  and 
thus  there  can  be  established  a  fixed  relation  between 
all  human  aims.  When  several  conflict  in  their  accom- 
plishment, one  can  always  by  applying  a  moral  test 
decide  which  should  be  placed  highest  in  the  moral 
scale,  and,  consequently,  which  are  to  be  preferred. 

1It  goes  without  saying  that   this  declaration  relates   not  to  mere  material 
interests  alone,  but  also  includes  the  highest  moral  interests  of  man. 


THE   CONCEPTION   OP   LAW  49 

But  reality  does  not  show  us  isolated  men,  mutually 
independent.  Each  instant  we  must  recognize  our  de- 
pendence upon  our  fellows.  All  our  activity  depends 
upon  our  relations  with  other  men;  without  them  the 
realization  of  our  interests  would  be  impossible.  Those 
interests  which  are  general  subjects  of  human  activity 
are  not  merely  subjected  to  other  individual  existences, 
they  are  universally  subordinated  to  general  conditions 
of  social  life;  for  this  reason  many  interests  have  not  an 
individual  but  a  social  character.  Man  must  act  con- 
formably not  merely  to  his  personal  interests,  but  to 
those  also  of  other  men  without  whom  he  cannot  exist. 

When  a  man  enters  into  relations  with  his  fellows 
not  only  do  his  own  interests  contest  together,  but  his 
own  interests  conflict  with  those  of  other  members  of 
society,  the  adoption  of  a  common  criterion,  the  estab- 
lishment of  the  desired  harmony,  of  a  fixed  order  among 
the  different  interests  in  view,  becomes  more  difficult. 
The  interests  of  another  against  which  our  own  are 
in  conflict  may  be  exactly  equivalent  or  identical  with 
ours.  The  moral  criterion  cannot  then  give  such  an 
indication  as  to  settle  the  conflict.  It  is  not  merely 
when  identical  interests  are  in  conflict  that  the  moral 
criterion  is  insufficient.  The  application  of  a  moral 
criterion  to  a  multiplicity  of  interest  at  once  can  only 
be  conceived  as  possible  if  the  criterion  is  accepted  by 
them  all.  Otherwise  there  will  be  under  consideration 
some  acts  which  will  conform  to  a  fixed  moral  rule,  but 
which  will  not  be  the  same  for  all  the  interests.  The 
divergence  will  appear  not  only  between  the  interests 
but  also  between  the  conditions  which  inspired  them. 
Very  rarely  do  men  apply  the  same  moral  rules  to  the 
lesser  details  of  their  acts.  In  society  only  the  more 
important  requirements  are  recognized  as  obligatory. 
The  details  of  our  action  are  tried  only  by  a  subjective 
standard.  The  personal  opinions  of  one  man  cannot 


50  THEORY  OF  LAW 

be  obligatory  upon  another.  A  common  criterion  may 
be  lacking  by  which  to  test  and  compare  the  divergent 
interests  of  two  men.  Finally,  even  when  the  moral 
norms  applied  by  the  individuals  are  identical,  the 
evaluation  and  comparison  of  the  interests  of  different 
individuals  may  be  impossible.  The  aims  of  human  ac- 
tivity do  not  present  themselves  separately  and  in  a  dis- 
tinct manner;  they  are  mingled,  interlaced,  dependent 
one  upon  another,  and  subordinate  one  to  another. 
When  the  question  is  as  to  the  evaluation  of  the  aims 
of  a  single  man,  there  is  no  difficulty.  The  man  himself 
can  organize  his  individual  aims  and  their  reciprocal 
connections.  But  the  aims  of  others  are  unknown  to  us 
except  as  manifested  in  external  actions.  Others'  pro- 
jects are  known  to  us  only  by  objective  proofs,  not  in 
their  subjective  details.  But  without  such  knowledge 
a  complete  evaluation  of  different  ends  is  impossible. 
Thus,  the  acquisition  of  a  good  is  moral  or  immoral 
according  to  the  intended  use  of  it.  This  is  why,  when, 
proposing  to  acquire  something,  I  establish  that  my 
acts  injure  another's  interests,  I  cannot  make  upon  these 
facts  an  accurate  moral  judgment.  I  cannot  know  cer- 
tainly whether  my  own  interest,  or  his,  ought  to  be 
considered  of  most  importance. 

So,  when  the  interests  of  people  conflict,  there  cannot 
be  established  between  them  a  fixed  relation  by  com- 
paring them  and  applying  to  them  the  same  criterion. 
The  interests  are  often  identical.  The  many  details 
upon  which  depends  the  judgment  we  apply  remain 
ordinarily  unknown.  Finally,  the  complexity  of  our 
moral  ideas  complicates  the  question  still  further.  It  is 
only  in  their  most  intimate  relations  that  men  can  under- 
stand each  other  and  be  led  to  apply  the  same  moral 
rule  with  a  view  to  reconcile  the  various  interests  under 
consideration.  Many  conditions  must  be  fulfilled  to 
establish  such  a  state  of  things,  absolute  identity  of 


THE  CONCEPTION  OF  LAW  51 

moral  ideas,  entire  freedom,  perfect  mutual  confidence, 
and  a  love  that  mingles  another's  interest  with  one's 
own  on  equal  terms.  Such  relations  are  not  the  rule 
in  social  life.  Ordinarily  men's  relations  are  not  marked 
by  identity  of  opinions,  by  freedom,  by  confidence  and 
by  affection.  As  a  result,  it  is  difficult  to  find  a  rule 
readily  accepted  by  all  the  world.  It  becomes  neces- 
sary to  recognize  the  infinite  variety  of  situations  and 
of  personal  preferences,  to  establish  a  fixed  relation 
between  others'  interests  and  our  own  personal  ones. 

The  mutual  relations  between  men  whose  interests 
are  in  conflict  may  present  two  essentially  different 
types.  1st.  The  interests  of  one  may  be  wholly  sub- 
ordinated to  the  other's  so  that  the  former  is  only  a 
means  for  effecting  the  latter 's  ends.  In  a  case  of 
absolute  subordination  of  this  kind,  the  master's  re- 
lations with  the  subject  are  determined  by  the  same 
principles  as  with  other  animals,  and  things  which  are 
considered  merely  as  means  for  realizing  ends.  The 
accomplishment  of  these  aims  is  guided  by  technical 
norms,  choice  among  them  by  morality.  There  can 
be  here  no  new  peculiar  norm  to  regulate  the  mutual 
relations  established  by  hypothesis  between  master  and 
subject.  2d.  The  persons  whose  interests  conflict  may 
present  themselves  clothed  in  the  same  legal  capacity 
without  bond  of  subordination  between  them.  In  such 
case  the  conflict  cannot  be  settled  by  the  complete 
subjection  of  one  to  the  other.  One  ought  under  this 
hypothesis  to  establish  a  certain  sphere  in  which  each 
of  the  diverging  interests  can  be  realized  fully,  or  in 
other  terms,  the  simultaneous  realization  of  these  in- 
terests, to  be  free,  can  only  proceed  if  their  respective 
domains  are  set  off  to  them  beforehand;  and  thus 
the  human  conscience  was  obliged  to  work  out  some 
rule  for  securing  a  moral  criterion  for  the  evaluation 
of  our  acts  and  some  other  rules  for  fixing  and  marking 


52  THEORY   OF   LAW 

off  the  respective  domains  wherein  our  interests  and 
those  of  others  can  be  realized.  These  different  norms 
have  the  same  function,  the  simultaneous  realization 
of  men's  different  aims.  Consequently,  the  norms  which 
delimit  the  field  of  action  for  our  interests  are  ethical 
norms.  But  they  do  not  give,  differing  in  this  from 
moral  norms,  a  criterion  for  the  evaluation  of  our  in- 
terests, for  the  distinction  of  evil  from  good.  They 
teach  us  only  to  fix  limits,  give  the  law  for  the  reali- 
zation of  our  interests  when  they  trench  upon  those 
of  others.  Consequently,  the  norms  for  the  delimita- 
tion of  interests  set  the  boundary  between  law  and  not 
law  and  constitute  "juridical  norms." 

Thus,  the  distinction  between  morals  and  law  can 
be  formulated  very  simply:  Morality  furnishes  the 
criterion  for  the  proper  evaluation  of  our  interests; 
law  marks  out  the  limits  within  which  they  ought  to 
be  confined.  To  analyze  out  a  criterion  for  the  evalua- 
tion of  our  interests  is  the  function  of  morality;  to 
settle  the  principles  of  the  reciprocal  delimitation  of 
one's  own  and  other  people's  interests  is  the  function 
of  law.  It  is  not  difficult  to  show  that  from  this  fun- 
damental distinction  between  law  and  morals  result  the 
other  differences  between  juridical  and  moral  norms. 
They  are  all  explained  by  the  capital  distinction  just 
stated. 

Since  law  is  the  delimitation  of  the  interests  of  differ- 
ent persons,  juridical  norms  govern  only  our  relations 
with  others  and  not  those  with  ourselves.  Moral  rules, 
on  the  contrary,  determine  our  duties  toward  ourselves, 
for  our  acts  have  a  moral  quality  even  when  they  con- 
cern only  ourselves. 

The  application  of  juridical  norms  is  conditioned  by 
the  opposition  between  others'  interests  and  our  own, 
and  by  consequence,  their  observance  is  obligatory  only 
when  such  interest  of  another  exists.  It  is  that  interest 


THE   CONCEPTION   OP   LAW  53 

which  compels  observance  of  juridical  norms.  If  the 
person  whose  interests  limit  mine  releases  me  from 
their  observance  they  are  no  longer  obligatory:  Volenti 
non  fit  injuria.  On  the  contrary,  the  obligation  of 
moral  rules  does  not  depend  upon  the  interest  which 
other  persons  have  in  their  fulfillment.  Even  if  no  one 
impose  it  upon  me,  moral  duty  keeps  for  me  all  its  force; 
for  the  evaluation  of  interests,  in  a  moral  point  of  view, 
does  not  change  even  when  they  are  no  longer  in  conflict 

It  results  likewise  from  this,  that  moral  norms  impose 
an  inflexible  moral  duty  upon  us.  From  juridical  norms 
there  results  for  us  a  right  and  a  correlative  duty.  The 
right  is  precisely  the  ''faculty"  to  which  corresponds  the 
obligation  binding  another  person,  the  " faculty"  of 
realizing  a  given  interest  within  the  limits  fixed  by  jurid- 
ical norms.  The  juridical  obligation  is  the  obligation 
to  satisfy  the  requirements  which  flow  from  the  right 
with  which  another  is  vested  in  regard  to  us,  the  obli- 
gation of  observing  the  limits  assigned  to  the  different 
interests  under  consideration,  as  determined  by  the 
juridical  norms.  It  is  thus  that,  differing  from  moral 
duty,  juridical  obligation  continues  only  while  the  in- 
terests exist  for  which  it  was  established.  Such,  for 
example,  is  the  idea  of  prescription  which  extinguishes 
obligations.  Morality  does  not  recognize  this  idea  which 
has  produced  such  juridical  effects. 

The  moral  evaluation  of  our  interests  arises  from  our 
conscience.  Their  delimitation  depends  upon  exterior 
relations  which  are  found  established  between  the  dif- 
ferent persons  under  consideration  subject  to  law.  Mo- 
rality, arising  only  from  the  conscience,  admits  of  no 
constraint.  Convictions  are  not  created  by  the  action 
of  external  force.  Law,  on  the  other  hand,  admits 
sometimes  of  constraint,  precisely  in  the  case  of  an 
encroachment  upon  the  domain  within  whose  limits  it 
recognizes  our  right  to  act  freely.  Constraint  cannot 


54  THEORY   OF   LAW 

dictate  to  us  our  convictions,  but  can  arrest  and  prevent 
an  illegal  act.  The  moral  evaluation  of  interests  can 
find  its  application  when  it  is  adopted  by  a  single  man, 
who  constrains  himself  by  it  in  his  own  acts.  On  the 
other  hand,  that  there  may  be  a  place  for  the  juridical 
delimitation  of  our  interests  all  the  persons  whose  inter- 
ests are  under  consideration  must  realize  the  obligatory 
force  of  the  norm  employed.  Morality  is,  then,  rather 
a.  rule  for  the  individual,  law  a  social  rule.  All  these 
secondary  differences  between  law  and  morals  are  con- 
sequences of  the  fundamental  distinction  which  we 
have  indicated,  that  the  one  is  the  delimitation,  the 
other  the  evaluation  of  interests. 

From  another  point  of  view,  it  is  not  difficult  to  prove 
that  every  juridical  norm  is  necessarily  a  norm  for  the 
delimitation  of  interests.  This  appears,  first,  from  the 
fact  that  juridical  norms  find  no  application  in  our  rela- 
tions with  our  animals  and  slaves,  who  are  considered 
as  beings  whose  interests  are  inseparable  from  their 
master's  and  wholly  absorbed  by  the  latter;  and,  second, 
from  the  fact  that  every  juridical  norm  supposes  neces- 
sarily an  existing  relation  between  several  interests, 
the  norm  serving  to  establish  their  respective  limits. 
Civil  law  marks  off  the  private  interests  of  individuals 
who  enter  into  relation  with  each  other,  those,  for 
example,  of  husband  and  wife,  parents  and  children, 
vendor  and  purchaser,  landlord  and  tenant,  debtor  and 
creditor.  In  criminal  proceedings,  on  one  side,  are 
observed  the  interests  of  the  accused,  and  on  the  other 
those  of  society,  represented  by  the  government.  In 
civil  proceedings  the  interests  of  plaintiff  and  defendant; 
in  constitutional  law  the  interests  of  all  the  members 
of  the  state,  from  monarch  to  serving  man;  in  interna- 
tional law  the  interest  of  states  as  members  of  the 
international  community  and  of  men  as  citizens  of  the 
different  states. 


THE   CONCEPTION   OF  LAW  55 


Section  7.     Relationship  of  Law  and  Morals 

RENNENKAMPF.  Law  and  Morals  in  their  Reciprocal  Relations. 
(Archives  of  practical  and  historical  instruction,  1860.) 

SCHTEGLOV.      Law  and  Morals,  1883. 

STAHL.      Die   Philosophic   des   Rechts,    1878.     Vol.   2.     s.    191. 

AHRENS.     Die  Rechts-Philosophie.     Vol.   1.     s.   145. 

ROEDER.     Grtmdzuge  des  Naturrechts,   1860.     Vol.   1.     s.   110. 

SCHAEFFLE.  Bau  und  Leben  des  socialen  Korpers,  1881.  Vol. 
1.  s.  593. 

LASSON.     System  der  Rechtsphilosophie,  1880. 

JELLINEK.  Die  Socialistische  Bedeutung  von  Recht,  Unrecht, 
und  Strafe,  1878.  s.  42. 

WALLASCHEK.      Studien  zur  Rechtsphilosophie,    1889.    s.   52. 

HALTS.     Les  fondements  de  la  morale  et  de  droit,  1890. 

Law,  then,  in  contradistinction  to  morals,  does  not 
present  the  ethical  appraisal  of  our  interests  but  their 
delimitation.  How  define,  then,  the  relation  between 
the  two?  Before  fixing  the  proper  domain  exclusively 
assigned  to  some  given  interest  do  we  first  appraise  its 
moral  value?  On  the  contrary,  is  not  this  last  com- 
pletely ignored  in  settling  legally  the  status  of  many 
interests  together?  The  extremely  individualistic  theo- 
ries which  were  in  favor  in  the  XVII  and  XVIII  cen- 
turies ended  their  development  with  the  negation  of 
all  connection  between  law  and  morals.  In  order  to 
explain  social  phenomena,  these  theories,  as  we  know, 
take  for  a  starting  point  the  individual,  absolutely  iso- 
lated, enjoying  unfettered  liberty  and  without  connec- 
tion with  his  fellows.  According  to  the  theorists  of 
that  time,  relations  between  individuals  are  caused  by 
their  voluntary  and  deliberate  action.  Their  starting 
point  was  the  full  liberty  of  the  natural  man.  The 
formation  of  society  and  constitution  of  a  government, 
the  establishment  of  a  bond  of  mutual  dependence, 


56  THEORY  OF  LAW 

was  regarded  as  the  spontaneous  work  of  the  human 
will.  Placing  oneself  at  the  point  of  view  of  this  theory, 
the  chief  task  of  the  legislator,  called  to  the  delimitation 
of  the  interests  under  consideration,  consisted  in  pre- 
venting each  person  from  encroaching  upon  the  natural 
liberty  of  his  neighbor.  The  legislator  had  not  to  ask 
himself  in  what  this  liberty  consisted  or  for  what  pur- 
pose the  man  designed  to  use  it. 

The  first  author  of  the  XVIII  century  to  mark  in  an 
exact  fashion  the  opposition  between  law  and  morals 
was  Christian  Thomasius.  (Fundamenta  Juris  natures  et 
gentium  ex  sensi  communi  deducta  in  quibus  ubique 
secernetur  principia  honesti,  Justi  ac  decori,  1718.)  He 
gave  to  legal  rules  an  absolutely  negative  character, 
which  prescribed  the  doing  of  nothing,  while  fixing  at 
the  same  time  rules  for  discharging  our  full  duty  to  our 
fellows.  In  accordance  with  this,  he  recognized  as  the 
chief  principle  of  law  the  following  rule:  Quod  tibi 
non  vis  fieri,  alter i  ne  feceris.  "Whatever  you  do  not 
wish  done  to  you,  do  not  to  another."  Morals,  on  the 
contrary,  according  to  him  include  all  the  rules  deter- 
mining duties  towards  ourselves.  The  fundamental  rule 
of  morality  is  the  following:  Do  to  yourself  whatever 
you  wish  others  to  do  to  themselves.  The  rules  of  law 
and  of  morality  distinct,  for  him,  by  their  content,  are 
so,  likewise,  in  their  application.  Moral  duties,  being 
positive  and  regarding  only  ourselves,  can  be  taught 
under  the  form  of  advice.  Juridical  duties,  being  only 
negative  and  regarding  others,  call  for  a  command 
which  if  not  observed  brings  punishment.  No  one  can 
be  left  to  the  free  determination  of  each  observance  of 
duty  towards  his  fellows.  The  power  of  the  state, 
armed  with  constraint,  is  called  upon  to  oversee  the 
observance  of  juridical  duties  and  of  them  alone.  The 
state's  power  ought  not  to  extend  to  the  sphere  of  moral 
duties. 


THE  CONCEPTION  OF  LAW  57 

The  authors  of  that  century  who  followed  him,  above 
all  Kant,  and  Fichte,  continued  to  accent  the  opposition 
between  law  and  morals  which  Thomasius  sketched. 
Kant  considered  as  the  fundamental  principle  of  law, 
from  which  all  legal  norms  flow  by  logical  necessity,  the 
following  rule:  "Act  in  such  a  way  that  your  liberty 
accords  with  that  of  everyone  else."  Consequently, 
legal  rules  take  effect  only  on  the  external  side  of  actions 
and  rest  for  their  realization  on  constraint.  With  Fichte 
this  idea  receives  more  rigorous  expression.  For  him, 
law  is  an  absolutely  mechanical  result  of  the  existence 
together  of  a  number  of  persons,  and  the  combination 
of  external  conditions  produced  by  constraint  and  nec- 
essary for  the  common  existence  of  them  all. 

The  opposition  between  law  and  morality  affirmed  by 
the  individualistic  theories  became  a  kind  of  watch- 
word in  the  struggle  for  liberty  of  conscience  and  indi- 
vidual liberty  generally  against  the  system  of  exagger- 
ated tutelage  by  the  state.  The  religious  persecutions, 
and  the  state  interferences  in  the  most  intimate  mani- 
festations of  personal  life,  resulted  from  the  confusion 
of  law  and  morals  at  this  time.  In  this  state  of  things 
legislation,  called  upon  to  establish  juridical  norms,  nat- 
urally extended  itself  over  questions  of  conscience  and 
disregarded  the  moral  dignity  of  human  actions.  On 
the  other  hand,  the  separation  of  law  and  morality 
brought  on  an  application  of  the  opposite  rule  which 
makes  law  indifferent  to  questions  of  morals.  Its  task 
was  conceived  as  to  set  bounds  to  the  external  liberty 
of  men  without  troubling  itself  as  to  how  they  would 
use  that  liberty,  whether  conformably  to  moral  require- 
ments or  not. 

As  a  reaction  against  the  excessive  oppression  of  indi- 
vidual liberty  by  the  state's  intervention,  this  theory 
has  great  importance.  Moral  ideas  are  always  more  or 
less  subjective,  touch  always  the  most  intimate  and 


58  THEORY   OF  LAW 

secret  side  of  man's  personal  life.  This  is  why  legisla- 
tion, which  establishes  as  the  foundation  of  its  delimita- 
tion of  interests  a  fixed  moral  evaluation,  results  infal- 
libly in  oppression  to  individual  liberty.  Indifference  on 
the  part  of  law  with  regard  to  morals  agrees  best  with 
an  extended  liberty. 

But,  by  the  side  of  this  advantage,  the  opposition 
between  law  and  morals  has  also  its  weak  points.  If 
the  law  neglects  moral  rules,  it  necessarily  results  that 
it  permits  immoral  actions  on  condition  that  the  man 
does  not  actually  pass  the  bounds  to  his  liberty  which 
it  sets.  The  highest  moral  interests  must,  then,  yield 
and  be  sacrificed  to  the  formal  exigencies  of  the  law. 
The  strict  application  of  the  law  appears  often  in  such 
cases  as  the  height  of  injustice.  "Summum  jus  summa 
injuria"  This  is  why  as  soon  as  the  rigorous  separation 
of  law  and  morals  has  caused  the  triumph  of  individual 
liberty,  and  above  all  of  the  liberty  of  conscience,  the 
extreme  consequences  of  this  doctrine  attract  attention 
and  a  reaction  commences.  Attempts  are  made  to 
bring  them  together  again.  Fichte  was  of  this  opinion. 
In  his  first  works  he  appears  as  a  determined  represen- 
tative of  the  doctrine  which  separates  law  and  morals. 
(Grundlage  des  Naturrechts.  1796.)  In  his  last,  he 
inclines  to  the  contrary  idea  and  recognizes  in  his  System 
der  Rechtslehre,  1812,  the  necessity  of  bringing  law 
and  morals  together.  At  present  the  whole  world  is 
agreed  upon  this,  thanks  above  all  to  the  efforts  of  the 
organic  school. 

In  reality  law  is  never  wholly  separated  from  morality. 
The  delimitation  of  interests  cannot  neglect  their  moral 
evaluation  so  as  to  base  itself  wholly  on  that  negative 
norm  which  forbids  assailing  others'  interests  and  others' 
wishes.  The  natural  state  of  man  is  by  no  means  that 
of  isolation.  The  establishment  of  society  is  not  the 
product  of  the  conscious  free  will  of  the  individuals 


THE   CONCEPTION   OF  LAW  59 

who  make  it  up,  but  depends  upon  the  e very-day  con- 
ditions which  establish  their  mutual  relations  quite  in- 
voluntarily on  their  part.  It  does  not  suffice,  then,  for 
the  delimitation  of  men's  interests  to  prevent  their  in- 
terfering arbitrarily  with  each  other.  Humanity  forms 
an  aggregated  whole,  a  solidarity  is  established  among 
its  members  independently  of  their  will.  It  results  that 
many  interests  by  their  content  have  a  character  not 
individual  but  social.  Their  essence  supposes  relations 
among  many  men  and  a  common  solidified  activity, 
tending  towards  the  same  end.  Consequently,  the  de- 
limitation of  a  man's  interests  viewed  in  connection 
with  his  relations  to  others'  requires  almost  always  not 
only  that  others'  interests  be  not  trenched  upon,  but 
also  that  man  limit  the  realization  of  his  own  interests 
in  order  to  permit  the  realization  of  higher  ones  of  others. 
In  these  conditions  it  is  clear  that  norms  for  the  delimi- 
tation of  our  interests  cannot  be  established  without 
making  a  comparative  moral  evaluation  of  ends;  in 
fact,  in  actual  legislation  moral  principles,  such  as  they 
were,  have  had  a  very  great  influence  upon  the  manner 
of  disposing  of  interests. 

Moreover,  law  is  not  limited  to  regulating  the  exterior 
side  of  actions.  It  always  takes  more  or  less  account  of 
motives.  Modern  law  goes  much  farther  than  primitive 
law  in  this  respect.  To  establish  obligations  with  re- 
gard to  contracts,  it  requires  that  there  be  a  real  con- 
sent, a  real  meeting  of  wills.  Moreover,  the  law  makes 
this  consent  sufficient.  It  demands  no  observance  of 
any  special  external  form.  Formerly,  on  the  other 
hand,  the  obligation  consisted  solely  in  the  observance 
of  this  form.  It  did  not  matter  whether  the  consent 
was  really  voluntary.  Now,  the  juridical  character  of 
an  act  is  fixed  not  merely  by  the  result  to  the  injured, 
but  by  the  intention  of  the  doer. 

A  person  who,  having  the  intention  to  slay  another, 


60  THEORY  OF   LAW 

causes  only  some  severe  wounds,  is  prosecuted  for  at- 
tempted assassination.  He  who  has  mortally  injured 
another  without  intention  to  kill,  is  prosecuted  for  the 
blow  or  the  wounding,  but  not  for  assassination.  The 
severity  of  the  punishment  depends  much  more  upon 
the  intention  than  upon  the  injury  which  has  resulted 
from  carrying  it  out. 

Moreover,  morality  requires  us  not  only  to  have  good 
intentions,  but  to  act  properly  and,  especially,  properly 
towards  others.  Love  for  one's  neighbor  is  the  basis 
of  Christian  morals;  and  modern  ethical  theories,  while 
not  resting  entirely  upon  religious  principles,  have  for 
the  most  part  an  altruistic  character. 

Because,  at  the  present  time,  it  is  admitted  that  the 
individualistic  theories  are  replaced  by  doctrines  which, 
in  explaining  human  relations,  start,  not  with  the  prin- 
ciple of  individual  independence,  but  from  the  fact  of 
the  social  dependence  of  men,  no  one  longer  seeks  to 
resolve  the  question  as  to  the  relations  of  law  and  morals 
by  opposing  directly  the  one  to  the  other.  No  one  any 
longer  thinks  that  law  is  absolutely  independent  of 
morals.  On  the  contrary,  law  is  placed  in  a  relation 
of  subordination.  The  end  of  law  is  now  regarded  as 
the  realization  of  morality. 

This  change  of  tack  with  regard  to  the  correlation  of 
law  and  morals  is  observable  already  in  Hegel.  He 
regarded  law,  morals  and  morality,  as  successive  steps 
in  the  dialectical  development  of  liberty.  He  con- 
ceives law  and  morals  as  different  aspects  of  morality. 
The  very  idea  of  morality  has  with  him  a  quite  original 
form.  Morality  (Sittlichkeit) ,  according  to  him  signifies 
a  social  order,  the  family,  civil  society,  the  state.  The 
correlation  of  law  and  morals,  he  represented  as  an 
antithesis.  Law  in  itself  is  deprived  of  all  fixed  content 
and  is  only  the  possibility  of  liberty.  Morals,  on  the 
contrary,  determine  not  the  possible,  but  what  ought 


THE   CONCEPTION   OF  LAW  61 

to  be.  So  law  and  morals  are  opposed  to  each  other 
as  the  possible  and  the  obligatory,  and  their  opposition 
disappears  in  the  highest  unity,  that  of  morality,  which 
is  the  reality  of  that  which  in  law  appears  only  as  the 
possible  and  in  morals  only  as  the  obligatory. 

The  subordination  of  law  to  morality  is  still  more  com- 
plete in  the  doctrines  of  the  organic  school.  Thus, 
Ahrens  recognizes  as  the  essential  motive  to  human 
activity  the  tendency  towards  the  realization  of  the 
human  ideal,  identical  with  the  supreme  good  of  human- 
ity. This  tendency  is  manifest  in  the  desire  to  realize 
the  different  special  aims  which  belong  to  human  nature. 
As  man  is  before  all  an  independent,  distinct  creature, 
his  aims  spring  before  all  from  the  needs  of  the  per- 
sonal life.  Such  are  the  preservation  of  his  life,  his 
health,  of  his  honor.  But  man  is  a  social  being.  For 
that  reason  he  has  also  social  needs,  language,  religion, 
science  and  art. 

So  we  have  two  groups  of  goods  which  make  up  the 
ends  of  human  activity.  These  two  groups  Ahrens  calls 
material  goods.  By  their  side  are,  moreover,  formal 
goods,  which  represent  no  special  human  interest,  but 
only  a  fixed  correlation  between  different  elements  of 
human  life.  Such  are  law  and  morality.  Morality  con- 
trols the  motives  and  ends  of  human  activity,  and  law 
determines  what  are  the  conditions  for  the  realization  of 
aims  indicated  by  morality,  conditions  which  depend 
upon  the  human  will. 

These  opinions  are  likewise  widely  spread  among  the 
modern  representatives  of  the  positive  tendency.  The 
celebrated  publicist,  Jellinek,  defines  the  correlation  of 
law  and  morals  thus:  Law  is  a  minimum  ethics,  that 
is  to  say  the  whole  combined  requirements  of  morals, 
whose  observance,  at  a  given  stage  of  social  develop- 
ment, is  absolutely  indispensable.  By  consequence,  law 
is  only  a  part  of  morals,  the  part  which  fixes  the  indis- 


62  THEORY    OF    LAW 

pensable  conditions  of  the  given  social  order.  All  moral 
requirements  beyond  this  indispensable  minimum,  con- 
stitute morals  in  the  strict  sense  as  distinguished  from 
law  The  observance  of  these  requirements  is  only  de- 
sirable, not  indispensable;  they  are  in  some  sort  an 
ethical  luxury.  Wallaschek  expresses  the  same  notion, 
modifying  it  a  little  and  making  it  more  precise.  Law 
and  morals  according  to  him  ought  to  be  connected 
together  as  form  and  content.  Morals  show  the  ideal 
to  be  assigned  to  human  activity  and  law  seeks  to  effec- 
tively realize  it.  Every  manifestation  of  morals  must 
receive  its  envelope  in  the  form  of  a  juridical  rule,  and 
every  law  have  its  moral  content.  But  since  moral  rules 
do  not  all  impinge  upon  the  mind  with  the  force  of  ob- 
jective truth,  since  they  may  be  discussed  and  even 
denied,  men  ought  be  satisfied  with  the  realization  under 
the  form  of  law  of  a  certain  number  of  moral  truths, 
strictly  indispensable  that  society  may  exist.  To  sub- 
ordinate in  this  manner  law  to  morals  as  means  to  an 
end,  as  form  to  contents,  is  to  formulate  a  theory  quite 
as  extreme  as  that  which  before  entirely  separated  them. 
We  cannot  see  in  law  merely  the  realization  of  moral 
rules,  for,  first,  the  whole  content  of  law  is  not  deter- 
mined by  moral  principles.  There  are  juridical  norms 
which  absolutely  leave  out  the  moral  point  of  view. 
Such  are,  for  example,  the  rules  of  law  which  control 
the  forms  of  juridical  acts,  provide  for  arrests  and  ad- 
journments, the  number  of  witnesses,  etc.  Second,  the 
thing  which  demonstrates  the  inaccuracy  of  the  theory 
we  are  combatting  is  the  following  fact:  The  law  com- 
prises a  number  of  rules  which  have  as  their  precise 
object  the  assuring  to  each  one  the  liberty  of  his  moral 
convictions.  Since  moral  convictions  are  not  identical 
among  men,  all  law  cannot  be  brought  into  the  realiza- 
tion of  moral  ideals.  Law  can  only  fix  limits  within 
which  the  man,  held  to  the  realization  of  a  certain  moral 


THE   CONCEPTION   OF   LAW  63 

order,  should  confine  himself,  within  which  he  can  move 
freely  without  getting  in  conflict  with  other  moral  con- 
ceptions perhaps  absolutely  opposed  to  his  own  and 
equally  worthy  of  protection. 

One  cannot,  then,  draw  out  the  relation  of  law  and 
morals  in  a  single  formula  equally  applicable  to  all 
social  phases  and  types  of  development.  When  in  a 
society  all  moral  opinions  are  alike  they  fix  the  delim- 
itation of  conflicting  interests.  When  the  matter  in 
hand  is  the  delimitation  of  interests  as  to  which  there  is 
unanimity  in  assigning  to  them  an  unequal  value,  the 
highest  in  the  moral  point  of  view  must  be  given  pref- 
erence. Interests  less  important  which  are  opposed  to 
it  are  necessarily  restrained  in  their  realization.  This 
is  why  primitive  society,  in  which  were  no  differing 
moral  opinions,  where  everybody  lived  in  conformity 
to  long  established  manners,  fixed  the  delimitation  of 
interests  in  accordance  with  such  manners  and  the  con- 
fusion of  law  with  morals  resulted.  But  when,  with 
social  development,  long  established  manners  lost  their 
former  stability  and  uniformity  under  the  influence 
of  more  complex  and  variable  social  conditions,  when 
new  moral  opinions  began  to  penetrate  the  social  con- 
sciousness, the  law  which  ought  to  be  recognized  by  all, 
based  itself  still  upon  the  old  moral  principles;  but  the 
moral  opinions  were  no  longer  the  moral  code  upon 
which  the  former  delimitation  of  interests  established 
by  law  rested.  Moral  notions  progress  faster  and  de- 
velop quicker  than  law.  The  latter  presents,  so  to 
speak,  a  lower  step  in  development,  a  step  which  morals 
have  already  taken.  This  correlation,  however,  of  law 
and  morals  is  not  necessary.  When  the  law  is  fixed 
not  only  by  ancient  customs  but  also  by  the  direction 
of  a  competent  man,  by  a  government  which  can  free 
itself  at  least  partially  from  the  authority  of  custom, 
legislation  can  rest  upon  moral  notions  which  rise  much 


64  THEORY  OF  LAW 

above  the  medium  level  of  moral  development  of  the 
given  society.  Finally,  when  with  the  ever-increasing 
complexity  of  social  life  several  different  general  doc- 
trines come  to  light  in  society,  the  delimitation  of  in- 
terests can  only  rest  upon  the  fund  of  moral  truth  com- 
mon to  all  these  doctrines,  upon  what  is  admitted  by  all. 
Consequently,  there  is  formed  a  sphere  of  moral  activity 
outside  of  the  sphere  of  the  law,  which  latter  can  em- 
brace only  the  moral  truths  held  in  common  by  the 
generality  of  individuals,  not  the  divergences  which  sep- 
arate extreme  opinions.  The  limits  of  this  sphere  and 
the  degree,  so  to  speak,  of  the  separation  of  law  and 
morals  are  not  constant  and  change  in  proportion  to 
the  number  of  moral  rules  recognized  by  everybody. 
It  cannot  be  said  that  these  limits  vary  exactly  accord- 
ing to  the  advance  of  social  development.  This  devel- 
opment certainly  brings  a  more  complex  social  life  and 
more  heterogeneous  and  probably  more  profound  moral 
divergences.  But  in  the  most  advanced  phases  of  social 
development  there  may  arise  a  general  attraction  towards 
some  given  religious  or  moral  doctrine,  and  then  the 
interpenetration  of  law  by  morals  becomes  closer  and 
more  intimate. 


THE  CONCEPTION  OF  LAW  65 


Section  8.     "Law"  in  the  Legal  and  in  the   Scientific 

Sense 

MILL.     System  of  Logic  1.    p.  345. 

EUCKEN.  Geschichte  und  Kritik  der  Grundbegriffe  der  Gegen- 
wart,  1878.  s.  115. 

MOUROMTZEV.  Sketch  of  a  General  Theory  of  Private  Law, 
1887,  p.  85. 

Every  general  norm,  juridic  or  moral,  ethical  or  tech- 
nical, is  a  rule  conditioned  by  a  determinate  end;  in  other 
terms,  it  formulates  that  which  is  obligatory  and  impera- 
tive. By  this  peculiarity  norms  are  distinguished  from 
laws  in  the  scientific  sense.  Law  in  the  scientific  sense  is 
a  general  formula  expressing  an  established  uniformity 
of  phenomena.  It  expresses  not  that  which  ought  to  be, 
but  that  which  in  reality  is,  not  that  which  ought  to 
come,  but  that  which  exists.  The  scientific  "law"  is 
only  a  generalized  expression  for  reality. 

It  results  that  norms  can  be  distinguished  from  the 
laws  of  science  by  saying  that  the  former  can  be  broken 
while  the  latter  cannot.  Norms  show  only  how  it  is 
necessary  to  act  to  attain  some  given  end;  but  action 
can  easily  be  contrary  to  duty,  and  the  observance  of  a 
norm  neglected.  The  scientific  law,  on  the  other  hand, 
does  not  depend  upon  men's  wills,  for  it  does  not  ex- 
press what  ought  to  be  realized  through  a  will,  but  what 
is  independent  of  the  human  will  and  exists  inevitably. 
There  is  yet  another  difference  between  norms  and  laws 
of  science.  Norms  guide  the  activity  of  men  and  indi- 
cate to  them  the  means  of  attaining  their  ends,  fix  the 
conditions  of  their  actions,  and  thereby  control  the  phe- 
nomena which  they  provoke.  The  laws  of  nature  only 
display  the  uniformity  of  existing  phenomena  and  cannot 
be  the  cause  of  them.  They  do  not  explain  for  us  why 


66  THEORY  OP  LAW 

phenomena  are  produced,  but  how  they  are  produced. 
It  is  not  "laws"  which  cause  phenomena,  but  other 
phenomena,  with  which  the  first  are  in  the  relation  of 
cause  and  effect.  Thus,  the  law  of  gravitation  does 
not  explain  why  bodies  gravitate  toward  each  other, 
but  merely  in  what  way  they  do  so.  If  we  sometimes 
say  that  such  or  such  a  phenomenon  is  produced  be- 
cause there  exists  such  or  such  a  law,  we  mean  not  a 
connection  of  cause,  but  a  logical  connection.  To  sum 
up,  it  is  agreed  to  call  laws,  the  most  general  formulas  as 
to  the  uniformity  of  phenomena,  formulas  which  can- 
not be  replaced  with  others  still  more  general.  This 
is  why  all  partial  generalizations  appear  as  logical  conse- 
quences of  laws  which  are  more  comprehensive  generali- 
zations. For  example,  if  we  say  that  the  movement  of 
a  falling  body  is  accelerated  because  gravitation  is  in- 
versely proportional  to  the  square  of  the  distance,  the 
first  proposition,  which  is  particular,  is  a  logical  conse- 
quence of  the  second,  which  is  general.  There  is  here  no 
causal  connection. 

So  in  opposition  to  norms  which  are  imperative  and 
obligatory  rules,  and  may  be  broken,  and  which  serve  as 
causes  for  human  action,  law  in  the  scientific  sense  is 
only  the  expression  of  actual  uniformity  in  phenomena, 
admits  of  no  violation,  and,  from  that  very  fact,  cannot 
be  the  cause  of  phenomena. 

This  definition  of  such  "law,"  generally  adopted  in 
moral  science,  is  recognized  alike  by  positivists  and  by 
metaphysicians.  Thus,  Lewes1  cautions  us  against  the 
error  of  believing  that  natural  laws  direct  phenomena, 
while  in  reality  they  only  give  formulas  of  the  manifes- 
tation of  those  phenomena.  In  the  same  way,  Eduard 
Hartmann  says  that  "laws  are  not  beings,  which  dwell 
in  the  air,  but  only  abstractions  for  forces  and  sub- 

1  Lewes,  Problems  of  Life  and  Mind.  1.  105.  Hartmann,  Philosophic  des 
Unbewussten. 


THE  CONCEPTION  OP  LAW  67 

stances";  it  is  not  because  the  given  forces  or  substances 
are  such  as  they  are  that  they  act  in  such  or  such  a 
manner ;  this  constancy  in  a  fixed  action  is  what  we  call  a 
law  of  nature. 

Juridical  norms  express  not  what  is,  but  what  ought 
to  be.  They  can  be  broken.  At  the  same  time  they 
are  causes  of  phenomena,  and  precisely  of  all  those 
phenomena  whose  whole  constitutes  the  juridical  life 
of  society.  Moreover,  they  cannot  be  reduced  to  the 
notion  of  law  in  the  scientific  sense,  a  mere  uniformity  of 
action.  But  what  is  the  relation  between  that  "law," 
in  the  scientific  sense,  and  juridical  norms?  Legal  lit- 
erature gives  some  widely  different  answers  to  this  ques- 
tion. 

Some  authors  affirm  that  juridical  norms  supply  in 
the  social  life  the  action  of  laws  in  the  scientific  sense. 
While  in  nature  regular  and  uniform  order  is  estab- 
lished of  itself  as  the  result  of  the  inevitable  regularity 
of  phenomena,  in  society  it  is  established  artificially  by 
juridical  norms  which  are  enforced  by  human  will.  It 
is  supposed  that  in  social  life,  which  is  composed  of 
conscious  human  actions,  laws  in  the  scientific  sense  can 
find  no  application.  This  theory  is  the  result  of  the 
false  opinion  which  regards  laws  as  causes  of  phenomena, 
an  error  which  proceeds  from  the  fact  that  the  word 
"law"  is  understood  not  only  in  its  scientific  meaning  but 
also  in  that  of  norm.  Thus,  we  talk  of  laws  of  art  and 
of  morals,  of  laws  divine  and  constitutional.  The  primi- 
tive meaning  of  the  word  was  exactly  this — Nomos-Lex. 
By  "law"  was  not  meant  the  unfailing  uniformity  of 
phenomena,  but  a  rule  established  by  man's  conscious 
will.  In  Aristotle  there  is  no  notion  of  scientific  law. 
Roman  writers  first  began  to  use  the  word  "law"  not 
only  to  designate  rules  for  human  activity  but  also  to 
indicate  the  inevitably  necessary  order  of  natural  phe- 
nomena. Lucretius  talks  of  Leges  natur®.  If  we  hold 


68  THEORY  OF  LAW 

to  its  primitive  meaning,  if  we  understand  law  as  the 
cause  of  phenomena  and  think  phenomena  are  neces- 
sarily produced  because  there  are  in  the  world  laws 
acting  as  special  forces  in  producing  phenomena,  it  will 
certainly  be  necessary  to  put  back  into  a  separate 
sphere  the  phenomena  induced  by  our  wills,  for  their 
causa  is  manifestly  not  law,  but  the  will.  In  fact,  how- 
ever, laws  in  the  scientific  meaning  as  already  recog- 
nized, ought  not  to  be  considered  as  the  cause  of  phe- 
nomena. They  are  rather  consequences  than  causes. 
Giving  to  these  "laws"  their  correct  signification,  there 
is  left  no  reason  for  refusing  to  extend  their  action  over 
the  field  of  human  activity.  Our  actions  are  brought 
about  by  our  conscious  wills.  That  is  incontestable. 
This  proposition  explains  why  we  act;  it  is  because  there 
is  in  us  a  will  which  presses  us  to  action;  but  it  does  not 
explain  how  we  act.  The  nature  of  man  presents  cer- 
tain qualities  which  are  common  to  everything  and  this 
common  character  gives  birth  to  a  certain  uniformity 
in  men's  actions.  This  uniformity,  established  and 
formulated,  constitutes  the  (scientific)  law  of  our  activ- 
ity. So  law,  considered  as  the  expression  for  a  fixed 
uniformity  in  phenomena,  is  applicable  likewise  to 
human  activity.  We  cannot  say  that  such  laws  have  no 
control  over  such  activity,  that  they  must  be  replaced 
with  something  else.  In  truth  modern  science  has  suc- 
ceeded in  showing  a  certain  regularity  in  social  phe- 
nomena. Statistical  research  has  shown  the  existence  of 
constant  laws  for  various  phenomena  of  social  life.  So, 
too,  we  try  to  ascertain  the  laws  of  the  coexistence 
and  development  of  social  phenomena  by  the  historical 
and  comparative  study  of  human  societies.  If  the  laws 
of  social  phenomena  are  thus  established,  we  cannot  say 
that  they  are  replaced  for  human  society  by  juridical 
norms. 

Contrary  to  the  theory  just  examined,  other  authors 


THE   CONCEPTION  OF  LAW  69 

claim  there  is  no  essential  difference  between  the  rules 
of  that  which  ought  to  be,  and  scientific  laws;  that  what 
we  call  obligatory  norms,  morality  laws,  are  but  con- 
jectures, hypotheses,  which  we  make  as  to  the  laws 
which  inevitably  control  our  activity.  With  our  imper- 
fect means  of  investigation  we  cannot  attain  perfect 
knowledge,  but  approach  it  nearer  and  nearer  by  replac- 
ing the  hypotheses  which  we  make  at  first,  with  others 
more  truthlike. 

The  idea  just  examined  has  the  defect  of  mingling  es- 
sentially distinct  conceptions.  Just  as  the  preceding  one 
is  based  upon  the  confusion  between  the  (scientific)  laws 
of  phenomena,  and  their  causes,  this  neglects  a  capital 
difference  between  norms  and  laws. 

This  difference,  from  which  results  the  impossibility 
of  seeing  in  law  simply  some  hypotheses  conceived  by 
man's  mind  as  to  the  laws  designed  to  control  his  activ- 
ity, appears  chiefly  under  two  connections.  First,  Law 
is  not  an  existing  fact  outside  of  man's  will  and  con- 
sciousness, a  fact  which  he  is  restricted  to  ascertaining, 
as  he  is  with  regard  to  the  laws  of  science.  A  rule,  even 
if  conceived  as  absolute  and  eternal,  is  so  conceived 
only  on  condition  of  being  considered  as  a  norm  whose 
observance  is  a  duty  to  all.  A  legal  rule  is  not  a  "law" 
which  affirms  the  uniformity  of  a  series  of  acts,  of  a 
group  of  phenomena.  It  is  not  in  the  repetition,  the 
periodical  and  regular  reproduction  of  these  acts,  that 
legal  rules  find  their  realization.  Those  who  drew  the 
celebrated  declaration  of  the  rights  of  man,  in  fully 
recognizing  liberty,  equality,  and  fraternity,  as  the 
immovable  basis  of  enacted  law,  were  compelled  to  rec- 
ognize the  fact  that  they  had  been  forgotten  by  men, 
and  for  a  very  great  while  prevented  from  realization. 
Whether  men  know  them  or  not,  the  laws  of  science 
none  the  less  exist.  When  Newton  found  the  laws  of 
gravity,  the  order  of  phenomena  did  not  change  at  all. 


70  THEORY  OF  LAW 

Before,  as  after  him,  the  force  of  gravity  was  as  the 
square  of  the  distance.  On  the  contrary,  if  we  compare 
antique  society  which  knew  not  the  idea  of  equality, 
and  modern  society  which  has  appropriated  it,  we  see 
an  essential  difference  between  them,  which  appears, 
for  example,  in  considering  the  question  of  slavery.  Sec- 
ond, What  distinguishes  in  a  still  more  clear  manner 
scientific  laws  from  legal  rules,  is  their  infallible,  invio- 
lable action.  The  legal  rule  on  the  other  hand  is  broken 
continually,  even  by  those  who  know  and  acknowledge 
it.  Consequently  we  cannot  say  that  law  is  an  unevad- 
able  order.  That  an  order  is  obligatory  does  not  mean 
that  it  is  inevitable.  We  are  under  obligation  to  yield 
to  duty,  but  we  can  repudiate  it.  We  are  powerless, 
however,  against  necessity.  We  must  yield  to  it.  Neces- 
sity may  even  release  us  from  duty,  impossibilium  nulla 
obligatio. 

So,  whatever  idea  we  form  of  law,  we  must  conclude 
that  it  does  not  present  the  leading  characteristics  of 
scientific  "laws." 

Considering  attentively  juridical  laws,  it  is  not  hard  to 
see  that  they  have  as  a  whole  a  very  relative  character 
and  one  with  which  that  of  scientific  laws  cannot  be 
compared.  These  last  express  the  general  uniformity  of 
a  given  group  of  phenomena  which  admits  of  no  excep- 
tion. Its  action  does  not  change  with  time  or  place.  Al- 
ways, everywhere,  and  for  every  such  case,  it  has  abso- 
lute effect.  Moreover,  it  is  agreed  to  call  a  law  of  sci- 
ence not  every  general  proposition,  but  only  those  which 
in  the  given  conditions  represent  the  utmost  possible 
limit  of  generalization  and  cannot  be  reduced  to  formulas 
still  more  general  and  simple.  Juridical  norms  have  a 
very  conventional  general  character.  They  are  general 
rules,  but  applying  only  to  relations  which  exist  in  a 
given  society  and  for  a  given  time,  usually  compara- 
tively short.  Consequently  in  different  places,  and  in 


THE   CONCEPTION   OF   LAW  71 

the  same  place  at  different  times,  we  discover  variations 
in  the  action  of  law.  In  such  case  the  juridical  norm 
does  not  represent  the  extreme  limit  of  generalization. 
The  juridical  norm  put  out  under  the  form  of  special 
custom  or  legislative  enactments  is  only  the  combina- 
tion of  several  different  norms  designed  to  regulate  a 
given  category  of  things.  It  can  always  be  reduced  to 
a  more  general  and  simple  principle.  For  the  same 
reason  a  juridical  norm  is  not  the  expression  of  what  is 
general  or  unchangeable  even  in  juridical  relations,  but 
represents  a  variable  and  concrete  element  in  the  jurid- 
ical order.  Norms  appear,  change,  disappear,  act  in  a 
certain  way  upon  the  combinations  of  juridical  rela- 
tions, and  cause  these  to  take  some  other  particular 
form.  So  they  correspond  not  to  laws  in  the  scientific 
meaning,  but  to  particular  phenomena  which  are  general- 
ized by  the  formulas  of  scientific  laws.  If  juridical 
norms,  as  we  have  shown,  cannot  be  identified  with  sci- 
entific laws,  nor  recognized  as  capable  of  filling  their 
place  in  the  moral  spheres,  what  can  they  be  but  phe- 
nomena? That  juridical  laws  and  scientific  laws  are 
absolutely  heterogeneous  notions,  Gustave  Hugo,  the 
founder  of  the  historic  school  of  law,  showed  clearly  at 
the  beginning  of  the  last  century.  Unfortunately,  his  idea 
was  not  sufficiently  perceived  by  his  disciples,  and  even 
now  some  jurists,  misled  by  resemblance  of  names,  still 
confuse  juridical  with  scientific  laws. 


72  THEORY  OF  LAW 


Section  9.    Relativity  of  Law 

To  explain  the  actual  relation  of  law  to  laws  of  nature, 
in  the  scientific  sense,  is  an  indispensable  condition  for 
determining  the  character  of  law  in  order  to  say  whether 
it  is  absolute  or  relative.  If  juridical  laws  represent  only 
a  group  of  the  phenomena  of  social  life,  law  like  all  phe- 
nomena in  general  has  naturally  only  a  relative  charac- 
ter. Being  a  phenomenon  it  is  variable,  depending  upon 
conditions  of  time  and  place.  The  distinction  between 
the  just  and  the  unjust,  like  that  between  the  positive 
and  negative  quality  of  phenomena,  between  warm  and 
cold,  between  heavy  and  light,  arises  from  our  personal 
feeling.  The  same  delimitation  of  interests,  appraised 
according  to  our  personal  impressions,  may  be  found 
just  or  unjust.  If  this  is  so,  the  circle  of  phenomena 
which  constitute  the  object  of  legal  science  is  determined, 
not  by  the  opposition  of  the  just  and  the  unjust,  but  by 
that  between  all  the  phenomena  which  admit  of  a  jurid- 
ical qualification  positive  or  negative,  no  matter  which, 
and  those  to  which  the  opposition  of  just  and  unjust  is 
not  applicable  because  they  do  not  admit  of  that 
quality. 

The  question  is  put  quite  differently  if  legal  rules  are 
to  be  regarded  as  the  natural  law  of  social  phenomena,  or 
as  something  that  for  such  phenomena  holds  the  place 
of  it.  In  that  case  law  is  everything  which  conforms 
to  such  a  natural  law,  prescribing  their  form  of  action 
to  all  the  rest,  a  necessary  order,  constant  and  not  to  be 
disturbed,  of  their  phenomena.  By  consequence  law 
should  not  be  relative  but  absolute,  eternal  and  univer- 
sal, independent  of  time  and  place.  The  distinction  of 
just  and  of  unjust  from  this  point  of  view  would  be  an 
absolutely  objective  distinction,  not  founded  upon  a 


THE   CONCEPTION   OF   LAW  73 

subjective  relation,  but  upon  the  immovable  natural  law 
expressing  objective  reality.  As  a  result  the  task  of  the 
science  would  be  determined  altogether  differently.  The 
scientific  explanation  of  law  would  need  to  begin  by 
defining  this  natural  law  of  right.  Without  having  de- 
fined it  we  could  not  advance  in  the  scientific  study  of 
law,  for  the  simple  reason  that  without  it  we  would  not 
know  what  is  conformable  to  law  and  what  is  not;  and 
these  are  precisely  the  points  which  are  the  very  object 
of  our  research. 

In  truth,  almost  all  the  old  juridical  literature,  which 
occupied  itself  with  these  general  questions,  followed  this 
tendency.  At  the  very  beginning,  for  these  authors  it 
was  necessary  to  find  at  any  price  a  principle  of  law  to 
serve  as  a  measure,  a  criterion,  to  distinguish  between 
the  just  and  the  unjust.  This  principle  once  discovered, 
would  serve  as  a  sort  of  philosopher's  stone  to  make 
known  to  us  the  secret  of  the  determination  of  the  jurid- 
ical order  and  be  applicable  everywhere  and  at  all  stages 
of  the  historic  development  of  society.  Sociability,  fear, 
tendency  to  happiness,  perfectibility,  liberty,  equality, 
harmonious  development,  and  a  series  of  such  principles, 
have  been  successively  proposed  for  this  purpose;  but 
none  of  them  could  answer  the  practical  test.  The  actual 
life  of  peoples  with  its  complex  character  could  not  be 
confined  within  the  framework  which  this  alchemy  of 
law  thought  to  trace  out  beforehand.  If  there  were  no 
surer  method  for  the  scientific  study  of  law,  it  would  be 
necessary  to  follow  the  opinion  of  those  who,  despairing 
of  finding  a  basis  more  solid  for  the  science  in  their 
ephemeral  constructions,  restricted  the  task  of  jurispru- 
dence, and  considered  it  simply  as  the  art  of  interpreting 
the  various  systems  of  national  law,  an  art  which  serves 
merely  the  immediate  needs  of  practice. 

But  if  we  consider  law  as  a  whole  made  up  of  phe- 
nomena, the  scientific  study  of  its  materials  finds  another 


74  THEORY  OF   LAW 

opening.  If  we  regard  it  as  a  whole  made  up  of  phe- 
nomena, then  between  lawful  and  unlawful  there  is  no 
absolute  opposition;  there  is  only  a  relative  difference. 
In  the  phenomenal  world  are  no  absolute  differences. 
For  example,  the  difference  between  hot  and  cold  is 
purely  relative.  What  is  cold  for  Reaumur,  is  warm  for 
Fahrenheit.  All  depends  upon  the  measure  chosen,  and 
there  is  no  absolute  measure.  When  the  physicist  under- 
takes the  investigation  of  the  phenomena  of  heat  and 
cold,  he  sets  himself  no  task  of  discovering  an  absolute 
difference  between  them,  but  only  of  explaining  the  pecu- 
liarities of  these  phenomena  compared  with  others,  as  for 
example,  those  of  light  or  electricity.  When  juridical 
problems  are  to  be  passed  on,  it  should  be  in  the  same 
way,  if  law  is  to  be  regarded  simply  as  the  ensemble  of 
juridical  phenomena.  From  this  point  of  view,  the  dis- 
tinction of  just  and  unjust  is  relative  and  therefore 
variable.  What  is  recognized  as  just  among  one  people 
at  a  given  epoch,  is  at  another  time  or  among  another 
people  considered  unjust.  Still  further,  if  we  place  our- 
selves in  a  given  phase  of  development  of  a  particular 
people,  the  distinction  is  relative  and  cannot  furnish 
an  immutable  criterion,  since  the  concrete  conditions 
in  which  the  given  fact  is  found  must  be  taken  into 
account.  So  the  judge,  placing  himself  at  the  point  of 
view  of  actual  law,  declares  to  be  just  that  which  con- 
forms to  legislation  and  current  customs.  A  publi- 
cist who  has  not  the  task  of  applying  the  law,  who  sat- 
isfies himself  with  fixing  its  value,  may  find  the  law 
itself  unjust,  and  that  to  be  just  which  opposes  it. 
Another  publicist  standing  at  another  point  of  view  may 
express  a  contrary  opinion  and  a  third  put  forth  a 
wholly  new  moral  doctrine  as  to  the  point  in  contro- 
versy. 

If  this  relativity  in  the  distinction  between  just  and 
unjust  be  granted,  the  task  of  law  is  not  limited  to  the 


THE   CONCEPTION   OF  LAW  75 

defining  merely  of  the  just.  Just  as  the  mechanician 
exhibits  the  identity  of  swift  movement  and  slow,  the 
physicist  of  the  phenomena  of  heat  and  cold,  so  also  a 
jurist,  considering  law  as  an  assemblage  of  phenomena, 
must  unite  in  his  circle  of  phenomena  both  the  just  and 
the  unjust.  The  distinction  of  just  and  unjust  will  not 
have  for  him  capital  value,  but  the  distinction  between 
what  is  related  to  the  group  of  juridical  phenomena  and 
that  which  does  not  come  within  the  juridical  definition, 
no  matter  whether  negative  or  positive,  will  do  so. 

To  be  sure,  in  drawing  out  mentally  the  distinctive 
points  of  a  given  group  of  phenomena  to  zero,  or  to  in- 
finity, we  can  image  to  ourselves  law  and  not  law  as  an 
absolute  opposition.  But  this  distribution  of  the  phe- 
nomena will  have  value  only  as  an  hypothesis  of  our  own 
imagining.  It  will  have  no  value  as  reality.  Where  we 
establish  a  complete  absence  of  law,  the  distinction  of 
just  and  unjust  would  not  be  applicable  and  would  have 
no  meaning.  The  historic  life  of  a  people  will  certainly 
never  present  an  example  of  such  a  state  of  things.  In 
point  of  fact  we  have  to  do  with  an  order  of  phenomena 
which  has  reached  neither  zero  nor  infinity. 

In  a  word,  for  the  science  of  law  there  is  no  need  to 
mark  an  absolute  distinction  between  just  and  unjust. 
It  knows  no  such  distinction.  It  takes  under  examina- 
tion equally  the  just  and  the  unjust,  placing  as  the  basis 
for  the  delimitation  of  the  object  of  its  researches  not 
that  distinction,  but  the  one  between  what  is  and  what  is 
not  law.  To  be  sure,  we  can  still  find  a  good  many 
people  who  think  that  to  admit  the  relativity  of  law  is 
to  commit  an  unpardonable  heresy.  But  in  examining 
closely  the  development  of  the  science  of  law  commenc- 
ing with  the  end  of  the  XVIII  century  we  may  observe 
that  this  principle  of  relativity  has  been  more  and  more 
recognized.  The  school  of  natural  law  which  appears  in 
the  XVII  century  and  marks  the  beginning  of  philosophic 


76  THEORY   OF  LAW 

legal  study,  held  a  rigorously  absolute  theory.  But  this 
theory  supposed  the  original  qualities  of  human  nature 
to  be  known.  It  broke  in  pieces  upon  the  necessity  of 
finding  an  objective  criterion  for  distinguishing  in  man 
what  is  natural  from  what  is  not.  The  historic  school 
which,  at  the  beginning  of  the  XIX  century  replaced 
that  of  natural  law,  undertook  to  show  the  relativity  of 
law,  and  its  national  character,  penetrated  with  the 
genius  of  the  people  who  shaped  it. 

If  each  people  has  its  special  law,  no  one  may  talk  of 
its  absolute  principles.  But  to  determine  the  spirit  of 
a  people,  and  its  qualities,  together  with  their  delimita- 
tion in  relation  to  those  of  an  individual,  has  seemed  as 
impossible  as  the  distinction  in  a  man  of  what  is  natural 
from  that  which  is  not  so.  It  is  necessary  either  to 
adopt  Puchta's  mystic  doctrine  which  personifies  the 
mind  of  a  people,  or,  placing  oneself  on  more  real 
ground,  recognize  that  a  people's  mind  is  simply  the 
manifestation,  simultaneous  and  collective,  of  that  of  the 
individuals  who  compose  the  people.  If  this  is  true  the 
popular  mind  can  have  no  determinate  character;  con- 
sequently, law  is  not  a  product  of  the  popular  mind, 
producing  itself  and  developing  of  its  own  accord,  but 
on  the  contrary  a  result  of  the  struggle  of  different  inter- 
ests which  represent  members  of  the  people,  a  result 
which  changes  with  the  progress  of  the  struggle.  Iher- 
ing  accepts  this  idea  in  his  latest  theory  and  proclaims 
the  complete  relativity  of  legal  principles.  There  is 
only  one  point  as  to  which,  indeed,  Ihering  has  not 
ventured  to  declare  the  relativity  of  law.  Recognizing 
completely  that  the  matter  of  legal  principles  cannot  be 
rigorously  determined,  that  it  is  relative  and  variable, 
he  believes,  nevertheless,  that  the  source  of  these  prin- 
ciples is  always  and  necessarily  the  same,  the  state's 
authority.  Consequently,  from  this  point  of  view,  he 
does  not  recognize  the  relativity  of  law.  But  there  is 


THE  CONCEPTION   OF  LAW  77 

left  only  one  step  to  take,  for  under  this  condition  it  is 
admitted  without  reserve. 

It  is  very  important  to  show  that  the  distinction  of 
just  and  unjust  is  purely  relative.  First,  It  is  only  on 
this  condition  that  one  can  establish  a  single  idea  of 
law,  which  can  embrace  all  juridical  phenomena.  In 
the  different  opinions  which  are  produced  as  to  law, 
there  is  to  be  observed  a  certain  duality.  On  one  side 
different  actions  are  examined  with  reference  to  their 
conformity  to  existing  law  or  to  their  disagreement  with 
it.  On  the  other  side  the  existing  law  in  force  is  itself 
examined  from  the  point  of  view  of  more  general  princi- 
ples. When  the  just  and  the  unjust  are  rigorously  dis- 
tinguished, no  explanation  of  this  can  be  found  except  in 
recognizing  a  double  law,  a  positive  and  a  natural  one. 
But  the  doctrine  of  the  relativity  of  law  gives  another 
explanation  of  the  phenomenon  just  mentioned.  It  rec- 
onciles the  variety  of  judgments  as  to  the  just  and  the 
unjust  with  the  unity  of  law.  It  explains  the  diversity 
of  judgments  which  we  pass  upon  the  different  manifes- 
tations of  law  by  that  of  the  criteria  applied  to  the  defi- 
nition of  the  just. 

Second,  The  construction  of  the  science  itself  gains  in 
unity.  According  to  the  general  opinion  the  science  of 
law  ought  to  study  only  law.  But  every  jurist  needs  to 
occupy  himself  with  what  is  not  law,  and  there  is  a  dis- 
tinct juridical  science,  the  criminal  law,  which  occupies 
itself  with  the  special  study  of  violations  of  law.  It  is 
true  that  criminalists  generally  affirm  that  the  true  sub- 
ject of  their  science  is  the  sanction.  Nevertheless,  the 
determination  of  crime  itself  has  a  genuinely  juridical 
character;  punishment,  on  the  contrary,  is  more  political 
in  its  nature,  and  generally  considerations  of  policy  slip 
in.  The  center  of  gravity  of  the  penal  law  is  the  defini- 
tion of  the  constituent  elements  of  the  crime,  and  not 
the  explanation  of  what  is  peculiar  in  the  different  sys- 


78  THEORY  OF  LAW 

terns  of  penal  repression  adopted  by  the  legislator.  In 
recognizing  the  relativity  of  the  distinction  between  just 
and  unjust  and  in  connecting  both  of  them  with  the  ob- 
ject of  legal  science  there  is  removed  at  the  same  time 
the  necessity  of  any  artificial  reasoning  to  explain  the 
juridical  character  of  criminal  law. 

Third,  If  one  admits  that  law  is  relative,  it  is  impossi- 
ble to  restrict  the  science  of  it  to  any  particular  form  of 
the  delimitation  of  interests.  If  law  in  its  entirety  is 
relative,  there  is  no  reason  to  exclude  from  the  circle  of 
phenomena,  which  the  science  of  it  studies,  any  norms 
for  the  delimitation  of  interests,  whatever  their  form  of 
construction,  whether  they  are  norms  established  by 
representatives  of  social  authority,  or  by  custom,  or  by 
reason  of  subjective  ideas  which  individuals  have  of 
their  rights.  Certainly  the  subjective  notion  of  law  is 
relative,  and  in  this  relativity  there  is  a  reason  for  not 
admitting  the  existence  of  any  "natural"  law  by  the 
side  of  the  positive  law  which  is  the  true  object  of  the 
science.  But  if  law  in  its  entirety  is  relative,  nothing 
prevents  placing  among  the  notions  of  it  even  the  norms 
for  the  delimitation  of  interests  elaborated  by  the  indi- 
vidual conscience.  This  gives  to  legal  science  a  greater 
breadth,  a  greater  unity,  even  a  more  solid  base;  for  the 
ideas  of  law  which  are  manifested  in  customs  and  in  leg- 
islation are  elaborated  first  of  all  by  the  individual 
conscience.  The  juridical  theory,  which  neglects  this 
source,  cannot  explain  the  origin  or  the  development  of 
law. 

In  defining  law  as  the  delimitation  of  interests,  I  admit 
the  complex  relativity  of  it.  This  definition  embraces  all 
the  delimitations  of  interests,  whatever  they  may  be, 
whether  from  the  subjective  point  of  view  just  or  un- 
just, and  in  whatsoever  manner  these  delimitations  may 
be  established,  by  customs,  legislation,  judicial  pro- 
cedure, or  by  the  subjective  notion  of  law. 


CHAPTER  II 

THE  LEADING  DIFFERENT  CONCEPTIONS  OF  LAW 
Section  10.    The  Definition  of  Law  by  What  it  Embraces 

To  define  legal  norms  as  "norms  for  the  delimitation  of 
interests"  is  to  give  a  definition  of  law  which  is  not  rec- 
ognized by  all  the  world.  None,  however,  which  has  ob- 
tained universal  assent  can  be  found  in  legal  literature. 
Those  actually  in  use  are  very  diverse,  and  several  among 
them  find  partisans  among  the  most  distinguished  jurists. 
It  is  necessary  then  to  make  a  choice,  and  to  do  this  with 
full  knowledge,  it  is  indispensable  to  study  them  all,  in 
order  to  show  their  respective  bases  and  values.  It  would 
be  aside  from  the  purpose  to  make  here  a  detailed  analy- 
sis of  all  the  definitions  of  law  which  have  been  produced 
up  to  our  time.  It  is  the  task  of  the  history  of  legal 
philosophy  to  set  out  all  the  definitions  of  law  in  their 
historic  order.  For  us  it  will  suffice  to  examine  the  most 
typical  definitions,  the  ones  most  widely  received  and 
which  lie  at  the  base  of  the  modern  tendencies  in  legal 
science. 

If  we  compare  our  definition  with  others,  we  shall  ob- 
serve first  of  all  that  it  does  not  contain  certain  features 
which  play  a  leading  part  in  others.  Our  definition 
does  not  in  any  way  determine  the  substance  (materiam) 
itself  of  legal  norms,  the  manner  in  which  they  delimit 
conflicting  interests,  or  the  principles  which  form  the 
basis  of  the  delimitation.  The  questions  'as  to  how  legal 
rules  are  formed,  by  whom  they  are  established,  are 
equally  left  open.  Finally,  in  our  definition  nothing  is 
said  of  the  coercive  character  of  law  which  is  often  con- 
sidered as  its  fundamental,  distinctive  attribute.  Mean- 

79 


80  THEORY  OF  LAW 

while,  the  very  terms  of  our  definition  may  raise  doubts 
and  controversies.  Some  authors,  partisans  of  the  for- 
mal tendency,  would  say  that  law  delimits  not  merely 
interests,  but  also  wills.  Partisans  of  the  utilitarian  ten- 
dency, on  the  contrary,  would  assert  that  instead  of  de- 
limiting interests,  law  protects  them.  It  is  consequently 
necessary  to  explain  why  we  have  chosen  this  intermedi- 
ary formula  which  passes  by  in  silence  the  matter  and 
the  sources  of  legal  rules  as  well  as  the  means  of  enforc- 
ing them. 

To  define  law  according  to  the  matter,  the  content,  of 
its  rules,  it  would  be  necessary  that  such  matter  be  iden- 
tical and  common  in  all  laws  so  that  they  could  appear 
as  the  result  of  the  same  general  principle.  In  reality, 
however,  the  legal  conceptions  of  different  countries  and 
of  different  epochs  of  history,  and  even  those  of  a  given 
people  at  a  given  historical  period,  do  not  present  such  a 
single  system  of  logical  consequences  derived  from  some 
sole  general  principle.  The  law  of  each  people  is  the 
result  of  a  continuous  evolution  throughout  its  history. 
Every  historic  epoch,  however,  brings  its  own  moral 
notions,  its  own  conditions  of  life,  which  determine  the 
matter  of  its  laws.  So  the  law  of  a  people  is  built  up  in 
a  series  of  historical  layers.  It  is  necessary,  also,  to  take 
into  consideration  the  borrowings  from  foreign  legisla- 
tion. In  this  manner  there  enters  into  the  composition 
of  the  law's  substance  some  ancient  principles,  and  some 
new  ones  resulting  from  more  recent  evolution,  principles 
peculiar  to  the  genius  of  the  country,  along  with  bor- 
rowed ones. 

The  material  of  every  system  of  law  is  therefore  very 
complex.  When  one  seeks  to  define  law  by  its  matter 
there  inevitably  result  formulas  which  determine  not 
what  the  law  actually  is,  but  what  in  the  author's  view 
it  ought  to  be.  Instead  of  a  scientific,  objective,  defini- 
tion of  law,  we  have  only  a  subjective  judgment.  It  is 


THE   CONCEPTION   OP  LAW  81 

impossible  to  bring  into  one  general  common  formula  the 
heterogeneous  materials  of  all  laws  existing  and  which 
have  existed;  and  for  this  reason,  to  define  law  according 
to  its  matter  one  must  commence  by  choosing  between 
different  legal  principles.  This  choice  can  be  based  upon 
no  objective  fact.  It  depends  on  the  subjective  judg- 
ment of  the  author.  The  result  is  a  great  variety  of  for- 
mulas. The  perfecting  of  human  society  (Leibnitz) ;  the 
harmonious  development  of  the  person  (Ahrens) ;  the 
maintenance  and  development  of  the  moral  order  (Tren- 
delenburg);  the  realization  of  well-being  (Kapoustine) ; 
the  combining  of  liberty  and  equality  (Soloviov);  these 
and  a  whole  series  of  others  are  presented  by  their 
authors  as  the  distinctive  matter  of  legal  rules.  In 
point  of  fact  we  find  a  good  many  laws  which  do  not 
have  for  their  end  the  harmonious  development  of  the 
person  (laws  organizing  social  classes)  or  the  combining 
of  liberty  and  equality  (laws  establishing  slavery), 
etc. 

Such  definitions  do  not  show  the  characters  common 
to  all  law,  but  merely  determine  the  ideal  for  the  devel- 
opment of  law  in  the  future,  an  ideal  entirely  subjective. 
Meanwhile,  among  the  different  proposed  definitions  there 
has  been  one  which  has  enjoyed  great  favor  among  the 
learned.  It  is  found  among  partisans  of  the  most  differ- 
ent tendencies.  It  is  the  definition  of  legal  rules  as 
''norms  of  liberty."1 

1  Hobbes.  "Neque  enim  jus  aliud  significatur  quam  libertas  quam  quisque 
habet  facultatibus  naturalibus  secundum  rectam  rationem  utendi." 

Kant.  "Das  Recht  ist  der  Inbegriff  der  Bedingungen  unter  denen  die  Will- 
kur  des  einen  mit  der  Willkur  des  andern  nache  einem  allgemeinen  Gesetze  der 
Freiheit  zusammen  vereinigt  werden  kann." 

Krause.  "Das  Recht  ist  ein  Lebensgesetz  fur  die  Freiheit  vernunf  tiger 
Wesen." 

Fridlander.  "Das  Recht  ist  die  Gestaltung  der  Lebensverhaltnisse  zum 
zwecke  der  Freiheit." 

Bauman.  "Das  Recht  ist  der  Inbegriff  derjenigen  Forderungen  vom  Mensch 
zum  Mensch  welche  fur  einen  auf  Freiheit  Aller  gegriindeten  Verkehr  unerloslich 
sind." 

Pachman.     "Law  is  the  measure  of  freedom  in  the  community." 

Binding.     "Das  Recht  ist  eine  Ordnung  menschlicher  Freiheit." 


82  THEORY   OF   LAW 

It  is  the  ambiguity  of  the  formula  which  explains  its 
success.  If  one  recognizes  in  the  definition  of  law  as 
" norms  of  liberty"  a  definition  founded  upon  the  matter 
they  contain,  he  must  mean  by  it  that  the  principle  of 
liberty  is  the  basis  of  all  legal  rules;  this  principle  must 
furnish  the  essential  substance  of  them  all.  They  would 
consist,  then,  merely  in  the  application  of  the  principle 
of  liberty  to  the  regulation  of  human  relations. 

Such,  indeed,  was  Kant's  opinion.  For  him,  law  is 
merely  a  combination  of  special  logical  consequences  re- 
sulting from  the  fundamental  rule,  "Act  in  such  a  way 
that  your  liberty  shall  accord  with  that  of  all  and  of 
each  one."  But  it  is  impossible  to  bring  under  such  a 
formula  the  mass  of  legal  rules  as  we  see  they  are.  The 
oriental  states  by  their  legislation  establish  castes.  The 
states  of  antiquity  recognized  slavery.  Those  of  the  mid- 
dle ages  with  their  feudal  aristocracy  show  how  difficult 
it  is  to  see  in  legal  rules  merely  logical  applications  of 
the  principle  of  liberty.  Kant  himself  in  propounding 
the  principle  had  in  view  not  the  actual  law  of  which 
historic  reality  shows  us  the  spectacle,  but  only  that  of 
reason,  Vernunftrecht. 

When  this  definition  is  applied  to  positive  law  in  its 
historic  development  a  different  meaning  is  given  to  it. 
Legal  rules  are  then  considered  as  logical  consequences  of 
the  principle  of  liberty  because  they  are  all  in  one  fashion 
or  another  delimitations  of  human  liberty,  establishing 
its  boundaries,  measure,  and  restrictions,  and  in  this 
sense  forming  "norms  of  liberty." 

Undoubtedly,  in  delimiting  interests  the  law  limits 
their  realization,  and  consequently  from  this  point  of 
view  is  a  restraint  upon  human  freedom.  But  even  so, 
the  substance  of  legal  rules  is  not  determined  by  the  for- 
mula we  are  examining.  This  definition  affirms  merely 
that  legal  rules  restrain,  regulate  liberty;  but  the  formula 
does  not  explain  in  what  way  this  regulation  is  accom- 


THE   CONCEPTION   OF   LAW  83 

plished.  It  results  that  this  formula  like  the  one  pro- 
posed in  this  book,  leaves  at  one  side  the  subject  matter 
of  laws. 

It  must  not,  however,  be  supposed  that  the  two  defini- 
tions are  identical.  If  every  delimitation  of  interests  is 
considered  as  a  norm  of  liberty,  this  definition  will  appear 
altogether  too  broad.  Every  rule  establishes  necessarily 
a  limitation  of  liberty  whether  it  be  a  rule  of  law  or  of 
morals.  So  the  definition  of  law  as  norms  of  liberty  will 
not  answer  by  itself.  It  leaves  no  room  to  distinguish 
between  delimitations  of  liberty  by  rules  of  law  and  by 
rules  of  morals. 

Moreover,  the  Kantian  definition  of  law  as  "norms  of 
liberty"  has  the  further  defect  of  supposing  a  rigorous 
contradiction,  a  complete  separation  between  the  inter- 
ests of  the  persons  under  consideration,  and  consequently 
suffers  from  attributing  to  law  merely  the  function  of 
separating  and  dividing,  and  not  that  of  unifying  and 
grouping  the  persons  subject  to  it.  In  truth,  liberty  as 
an  object  of  conscious  volition  may  be  merely  a  property 
of  an  individual;  but  it  presents  itself,  also,  as  a  purely 
negative  idea  in  so  far  as  it  puts  the  individual  in  oppo- 
sition to  the  rest  of  the  world.  On  the  other  hand  the 
notion  of  an  interest,  of  a  need,  is  a  positive  one,  and 
the  needs,  the  interests  of  an  individual,  are  precisely 
the  bonds  connecting  him  with  the  world,  and  especially 
to  the  other  persons  around  him.  Our  interests  are  by 
no  means  exclusively  personal,  still  less  individual. 
Most  of  them  are  common  either  to  all  humanity,  or  at 
least  to  a  more  or  less  extensive  special  group  of  men. 
In  realizing  these  interests  we  may  encounter  those  of 
other  men;  this  possible  contact  makes  their  delimita- 
tion necessary.  In  delimiting,  however,  these  common 
interests,  the  law  does  not  delimit  the  liberty  of  each 
individual.  It  combines  the  liberty  of  all  by  the  unity 
of  law  with  a  view  to  facilitating  the  common  realiza- 


84  THEORY  OF  LAW 

tion.  The  rules  of  international  law,  for  example,  which 
delimit  the  common  interests  for  all  humanity  and  for 
each  nation,  cannot  be  defined  as  "norms  of  liberty." 
The  basis  of  this  delimitation  is  not  the  opposition  of 
one  individual  and  his  interests  to  another,  but  that 
of  a  private  person  to  a  commonwealth  and  of  one  nation 
to  the  community  of  nations.  But  these  two  groups 
of  interests  belong  to  every  man  when  regarded  at 
the  same  time  in  his  quality  as  a  man  and  also  as  a 
member  of  some  particular  nation.  This  is  why  in  de- 
limiting these  interests  we  do  not  delimit  the  liberty 
of  one  in  relation  to  that  of  another,  but  merely  locate 
the  two  interests  which  are  equally  a  part  of  the  liberty 
of  each  individual.  To  take  another  example,  the  state 
is  concerned  that  the  excessive  exploitation  of  labor 
shall  not  bring  on  in  the  future  destructive  consequences 
by  reason  of  the  physical  and  moral  degeneration  of 
the  workers  which  might  result,  and  the  state,  there- 
fore, limits  the  length  of  the  working  day,  protects  preg- 
nant women,  and  little  children,  etc.  Such  regulations 
do  not  limit  the  liberty  of  the  workman  in  relation  to 
that  of  the  employer.  They  affect  equally  that  of  both. 
They  may  be  more  vexatious  for  the  workman  than 
for  the  manufacturer;  but  they  assure  for  the  future 
the  health  and  morals  of  the  workers.  There  is  no 
opposition  of  one  private  interest  to  another,  but  the 
opposition  is  between  the  present  and  the  future,  the 
temporary  and  the  eternal.  Each  of  us  lives  in  the 
future  as  well  as  in  the  present.  To  feel  entirely  safe 
in  the  present,  one  must  be  sure  of  the  future.  So  in 
this  example  we  must  recognize  not  a  limitation  of 
one  person's  liberty  in  respect  to  another  person,  but 
care  of  an  interest  which  makes  a  part  of  the  freedom 
of  each. 

The  definition  of  law  as  "norms  of  liberty"  is  a  mani- 
festation of  the  individualistic  tendency  in  legal  science. 


THE   CONCEPTION   OF   LAW  85 

So  long  as  one  sees  in  society  only  a  combination  of  inde- 
pendent individuals  bound  together  by  a  social  com- 
pact, it  was  entirely  correct.  But  with  the  change  of 
ideas  as  to  society  and  as  to  the  relations  of  individuals 
to  it,  the  definition  has  become  quite  inapplicable.  To- 
day the  individual  is  not  considered  as  the  chief  factor, 
determining  the  whole  social  order.  On  the  contrary 
he  is  himself  considered  as  a  product  of  society,  and 
we  are  rather  inclined  to  make  him  depend  upon  so- 
ciety. Legislation  is  not  confined  merely  to  the  task  of 
delimiting  individual  interests,  but  is  occupied  more  and 
more  with  realizing  common  interests  which  cannot  be 
considered  as  the  exclusive  property  of  any  one.  Con- 
sequently, law  cannot  be  defined  as  "norms  of  lib- 
erty." 


THEORY  OF  LAW 


Section  11.     Definition  of  Law  by  its  Source 

MOUROMTZEV.  Definition  and  Fundamental  Division  of  Law, 
1879. 

THON.  Der  Rechtsbegriff.  (Zeitschrift  fur  Privat  und  Oeffent- 
liches  Recht.  B.  VII,  1888.  s.  245.) 

SCHAEFFLE.  Bau  und  Leben  des  socialen  Korpers.  B.  I.,  1881. 
s.  623. 

SCHEIN.    Unsere  Rechtsphilosophie  und  Jurisprudenz.    1889. 

The  definitions  of  juridical  norms  according  to  their 
source  are  more  objective  than  those  which  are  based 
upon  the  matter  of  law.  They  do  not  contain  a  judg- 
ment upon  law  as  it  ought  to  be.  They  propose  to  de- 
termine the  distinctive  character  of  actually  existing  legal 
norms.  This  certainly  explains  their  favor  with  the 
jurists  who  are  partisans  of  a  tendency  which  is  a  re- 
action against  the  idealist  conceptions  which  preceded  it. 
Widely  spread  in  later  times  in  Germany,  it  has  pene- 
trated into  Russia.  The  definitions  of  this  kind  present, 
one  may  say,  two  varieties.  Those  of  one  kind  define 
legal  norms  as  those  established  by  the  state's  organs  of 
authority;  the  other  recognizes  in  a  more  general  way 
that  society  as  a  whole  is  the  source  of  law. 

In  the  first  case  juridical  norms  are  regarded  as  orders 
emanating  from  the  organs  of  state  power.  From  this 
point  of  view,  law  presents  itself  as  the  ensemble  of  state 
legislation.  All  which  is  not  founded  upon  some  state 
enactment  is  not  law.  Therefore,  there  is  no  law  where 
there  is  no  state.  Law  finds  birth  only  in  a  state,  is  an 
exclusively  state  product.  Customary  law  is  not  true 
law.  There  can  be  no  law  acting  outside  of  a  state's 
boundaries.  In  other  words,  international  law  is  not 
conceivable.  From  another  point  of  view,  since  legis- 
lation (lex)  is  here  recognized  as  the  sole  source  of  law, 
no  juridical  principles  from  any  other  source  can  oppose 


THE   CONCEPTION  OP  LAW  87 

the  will  of  the  legislator,  whether  it  be  customs,  science, 
or  the  individual  conscience.  So  law  and  legislation  are 
identified. 

The  popularity  which  this  theory  enjoys  is  explained 
chiefly  by  the  necessities  of  judicial  practice.  In  daily 
life  legal  contests  centre  in  fact,  most  of  the  time,  upon 
the  question  whether  or  not  such  a  precise  question  is 
provided  for  by  legislation.  Customary  law  in  most 
modern  states  does  not  play  anything  like  such  a  r61e, 
having  been  almost  effaced  by  written  legislation.  Very 
few  persons  are  compelled  to  occupy  themselves  with 
mere  theoretic  questions  of  law,  with  its  evaluation,  with 
legislation.  The  great  majority  are  accustomed  by  life 
itself  to  confuse  the  notion  of  law  with  that  of  leg- 
islation. Accustomed  to  see  in  the  latter  the  measure 
for  the  delimitation  of  interests,  we  forget  that  to  the 
interest  of  legality,  to  the  interest  favoring  invariable 
action  according  to  legislation,  other  interests  may 
be  opposed  which  sometimes  compel  authority  itself  to 
give  up  the  absolute  enforcement  of  its  legal  powers 
which  happens,  for  example,  when  an  amnesty  is 
granted. 

But  aside  from  this  practical  foundation,  the  positive 
notion  of  law  finds  still  another  one  in  theoretical  ten- 
dencies altogether  different.  The  partisans  of  the  old 
school,  who  admit  the  existence  of  an  absolute  idea  of 
justice,  see  in  the  identification  of  law  and  legislation  a 
means  of  reconciling  their  doctrine  with  fact.  The  di- 
versity and  variability,  in  a  word,  the  relativity  of  law, 
is  a  too  evident  fact.  By  consequence,  to  save  the  dogma 
of  an  absolute  justice,  a  rigid  dividing  line  is  traced  be- 
tween law  and  justice,  and  the  first  is  considered  as 
an  accidental  and  variable  form  of  the  second.  In  dem- 
onstrating the  relativity  of  law  it  is  thought,  at  the 
same  time,  the  absolute  character  of  justice  can  be  bet- 
ter defended.  Such  was  Stahl's  method.  Even  in  the 


88  THEORY   OF   LAW 

modern  literature  we  meet  still  with  partisans  of  this 
theory.  It  will  suffice  to  cite  Lasson  (System  der  Rechts- 
philosophie  von  Adolf  Lasson,  1882).  The  law,  said  he, 
is  an  exterior  order  having  an  historic  form  more  or  less 
accidental.  Therefore  all  law  is  positive  law.  It  can 
only  exist  in  a  state.  It  is  a  product  of  the  authority  of 
that  state.  Justice  is  an  absolute  principle.  It  has  its 
source  in  equality.  It  is  the  ideal  which  the  law  ought 
to  pursue  (ideate  Anfcrderung),  but  which  nevertheless 
can  never  be  completely  realized.  This  manner  of  look- 
ing at  the  question  is  no  doubt  compatible  with  the 
theory  of  the  existence  of  an  absolute  principle  of  justice, 
for  in  this  case  its  most  objective,  palpable  and  just 
form,  the  positive  law,  is  considered  as  something  abso- 
lutely distinct  from  this  justice.  Consequently,  to  dis- 
cover justice  properly  so  called,  it  would  be  necessary  to 
have  recourse  to  the  more  subjective,  and  less  determi- 
nate ideas,  which  our  consciousness  gives.  The  phe- 
nomena which  we  are  examining,  being  inexact  and  not 
seizable  by  the  senses,  it  is  naturally  difficult  for  us  to 
reach  a  precise  result. 

But  partisans  of  the  realistic  tendency  who  make  no 
pretensions  to  demonstrate  an  absolute  principle  of  jus- 
tice admit  equally  the  identity  of  law  and  legislation. 
The  realists  think  in  that  way  to  be  able  to  apply  to 
legal  study  the  positive  method  which  was  created  for 
the  natural  sciences.  In  comparing  the  science  of  law 
with  the  natural  sciences  we  take  account  first  of  the 
objective  and,  so  to  say,  palpable  character  of  the  very 
subject  of  the  natural  sciences.  In  applying  to  juris- 
prudence this  positive  method  which  has  brought  such 
progress  to  the  physical  sciences,  the  realists  think  to 
reach  results  as  precise  and  palpable.  The  palpable  form 
of  law  being  legislation,  the  identification  of  them  is  con- 
sidered a  requirement  of  the  positive  method. 

Behold  the  reasons  because  of  which  we  admit  very 


THE   CONCEPTION   OF  LAW  89 

often  the  identity  of  law  and  legislation,  understanding 
it  as  an  order  coming  from  the  supreme  organ  of  the 
state's  authority.  This  opinion  has  received  its  most 
vigorous  expression  from  the  pen  of  Schein.  Law,  ac- 
cording to  him,  is  a  norm  established  by  the  state  and 
not  by  individuals.  At  the  same  time,  it  is  not  an  order 
compelling  the  state  to  act  conformably  to  certain  prin- 
ciples. The  norm  indicates  only  how  the  state  itself  acts 
ordinarily.  The  law  is  for  the  state  as  for  the  individual 
the  ensemble  of  principles  which  it  follows  in  its  actions, 
which  it  imposes  upon  itself,  or  observes  voluntarily. 
Schein  means  by  the  state  not  the  whole  society  but 
only  the  government,  the  organs  of  authority.  Private 
law  itself  he  considers  a  collection  of  rules  promulgated 
by  the  state.  All  the  rules  of  civil  law  exist  only 
to  serve  as  norms  for  the  acts  of  judicial  power. 
By  the  enacted  laws  the  state  only  announces  that 
it  intends  to  follow  in  the  future  certain  princi- 
ples. 

This  definition  brings  up  at  bottom  in  the  negation  of 
law.  The  actions  of  the  state  are  at  bottom  the  actions 
of  men  who  are  considered  as  organs  of  the  state's  au- 
thority. Man  to  no  purpose  undertakes  the  function  of 
an  organ  of  authority;  his  psychic  nature  is  not  thereby 
changed.  He  still  guides  himself  by  ethical  and  techni- 
cal rules.  Consequently,  if  we  accept  Schein's  defini- 
tion and  develop  its  logical  consequences,  we  must  then 
go  so  far  as  to  say  that  every  technical  rule,  every 
rule  of  architecture,  for  example,  acquires  the  char- 
acter of  a  rule  of  law  when  the  organs  of  state 
authority  are  led  to  apply  it  in  their  acts.  Meanwhile, 
the  rules  which  govern  the  line  of  conduct  of  the  state 
cannot  all  be  considered  as  juridical  norms.  Thus, 
among  the  acts  of  governmental  activity  we  place 
apart  always  its  political  acts  of  government.  It 
is  the  same  when  the  government,  charged  with 


90  THEORY   OF  LAW 

the  administration  of  the  country,  applies  hygienic 
rules  or  other  technical  norms.  It  cannot  act  her 
by  "law." 

Generally,  writers  do  not  go  as  far  as  Schein.  Norms 
are  considered  as  juridical  only  when  imposed  by  state 
authority  for  observance  and  declared  obligatory  by  the 
government.1 

In  this  case  it  is  the  imperative  character  of  these  dis- 
positions which  constitutes  the  distinctive  trait  of  law. 
If  it  becomes  thus  possible  to  distinguish  between  jurid- 
ical, technical,  and  moral  norms,  it  is  always  true  to  say 
that,  on  the  other  hand,  this  conception  restricts  beyond 
measure  the  domain  of  law.  According  to  this  system, 
in  fact,  only  promulgations  of  the  legislator  constitute 
law.  Customary  rules  are  excluded.  But  the  study  of 
juridical  phenomena  shows  us  every  day  that  positive 
legislation  is  not  the  sole  source  of  law. 

The  jurist  who  identifies  law  and  legislation  ought  not 
to  neglect  the  examination  of  the  question  as  to  the  for- 
mation of  legal  enactments.  He  ought  to  examine  the 
conditions  of  their  first  formation,  and  those  of  the  latest 
ones.  These  researches  will  inevitably  lead  to  the  con- 
clusion that  law  in  its  entirety  cannot  be  referred  to 
legislation.  History  shows  us  that  the  first  enactments 
were  only  customs  thus  registered  after  having  been  es- 
tablished and  preserved  by  the  judicial  proceedings  of 
that  time.  All  primitive  legislation  bears  the  character 
of  a  supplement  to  existing  customary  law.  The  making 
of  special  additions  to  and  changes  in  it,  of  course  neces- 
sarily presupposes  its  existence.  So  we  see  that  legisla- 
tion is  separated  from  custom  only  by  the  wholly  exterior 
process  of  enactment  through  state  authority.  The  con- 
ditions of  legislation  at  the  beginning,  therefore,  do  not 
allow  of  the  general  identification  of  law  with  its  mere 

1  Jellinek.  Die  Rechtliche  Natur  der  Staatenvertrage.  1880.  s.  31.  Thon. 
Cited  above. 


THE  CONCEPTION  OF  LAW  91 

special  form  of  enacted  legislation,  and  compel  the  recog- 
nition of  juridically  sanctioned  customs  as  law.  We 
reach  the  same  conclusion  if  we  turn  to  the  formation 
of  modern  legislation.  Here  the  opinions  as  to  just  and 
unjust,  which  have  had  birth  in  society,  are  enacted  into 
law  as  a  result  of  an  external  formal  act;  for  example,  the 
taking  of  a  vote  in  Parliament.  But  the  matter  of  the 
law  existed  already  before  its  publication,  having  been 
furnished  either  by  public  opinion  or  by  ordinary  judicial 
procedure. 

If  law  and  legislation  (jus  et  lex)  were  identical  con- 
ceptions, the  existence  of  juridical  theories  would  be  hard 
to  conceive.  Every  theory  which  did  not  result  in  en- 
acted law  could  not  be  qualified  as  juridical,  and  mean- 
while it  is  known  there  are  upon  each  question,  no  mat- 
ter how  insignificant,  numerous  theories  which  are  not 
admitted  in  official  law  and  have  not  found  expression  in 
positive  legislation.  If  we  recognize  a  juridical  character 
in  these  theories  formulated  outside  of  all  state  author- 
ity by  some  savant,  we  shall  find  ourselves  in  the  pres- 
ence of  juridical  norms  not  coming  from  the  state.  If 
norms  become  juridical  only  in  taking  the  official  form 
(lex)  the  theory  of  their  derivation  from  enactment  or 
recognition  would  be  the  only  one  possible.  The  doc- 
trines having  the  same  content,  which  develop  the  same 
matter  from  juridical  norms,  as  well  as  from  enacted 
laws,  could  not  exist.  But  it  will  suffice  to  open  any 
treatise  on  civil  or  criminal  law  to  be  convinced  of  the 
existence  of  such  doctrines  as  to  the  matter  of  law.  They 
may  serve  the  material  of  legislation,  but  they  have  a 
juridical  character  even  before  their  transformation  into 
it.  It  is  true  there  are  writers  who  do  not  admit  the 
existence  of  a  theoretic  law.  They  say  that  the  idea  of 
a  theoretic  law,  of  a  law  which  does  not  act,  is  as  ab- 
surd as  that  of  a  wind  which  does  not  blow.1 

1  Bergbohm.     Jurisprudenz  und  Rechtsphilosophie.     s.  437. 


92  THEORY   OF  LAW 

Meanwhile,  it  must  be  admitted  that  man  conceives 
the  existence  of  enacted  laws  which  do  not  act,  where, 
for  instance,  they  are  abrogated.  Juridical  norms,  re- 
placed by  others,  do  not  become  thereby  rules  of  art  or 
moral  principles.  They  remain  juridical  norms  despite 
all,  quite  as  if  still  acting.  The  laws  of  the  XII  tables 
are  in  our  time  regarded  by  everybody  as  forming  part 
of  the  law  of  the  world  as  much  as  at  the  time  they 
were  in  force.  In  the  same  way  men  always  conceive  of 
a  law  which  is  no  longer  acting;  but  as  it  exists  in  con- 
sciousness, it  has  a  necessary  effect  upon  relations,  usages, 
judicial  procedure,  and  legislation. 

Other  writers  while  completely  recognizing  the  source 
of  law  as  its  distinctive  trait  and  the  true  ground  for  its 
definition,  yet  do  not  identify  it  with  state  legislation. 
They  define  juridical  norms  as  social  norms,  opposing 
them  to  moral  ones  which  they  style  individual  norms.1 

This  is  not  so  defective  a  definition  as  the  one  just  pre- 
viously examined.  We  might  even  say,  in  general,  that 
it  sensibly  nears  the  truth,  but  is  extremely  vague. 
What  is  individual  in  human  life  is  so  closely  connected 
with  what  is  social  that  it  is  impossible  to  draw  a  sepa- 
rating line  between  them.  Norms  established  by  an 
individual  cannot  be  distinguished  from  those  estab- 
lished by  society.  In  truth  norms,  as  in  general  every- 
thing in  life  and  human  consciousness,  are  the  joint 
product  of  individual  and  social  factors.  Man  is  born 
into  society,  inherits  from  his  parents  a  collection  of 
customs  and  social  habits.  He  is  educated  in  society, 


1  Brocher  de  la  Flehere,  Les  revolutions  du  droit,  I.  p.  29.  Le  droit  n'est  pas 
autre  chose  qu'une  espece  de  conscience  sociale.  Schaffle.  Bau  und  Leben,  2 
Ausg.  II.  s.  80.  Das  Recht  eine  durch  den  Trieb  der  Selbsterhaltung  geschaffene 
und  den  entwickelungsgeschichtlichen  Bedingungen  der  Gesammt  erhaltung 
angemessene  gesellschaftliche  Ordnung  der  Anpassungen  und  Organisationen,  der 
Vererbungen  Streitfuhrungen,  streitentscheidungen  und  Streiterfolge  darstellt. 
Kashnitsa.  Essence  of  Law.  P.  152.  Law  is  the  conformity  of  social  relations 
to  the  essence,  the  life,  the  destiny,  of  society  as  a  whole,  or  conformity  of  the 
individual  life  to  the  social  life. 


THE  CONCEPTION  OF  LAW  93 

acts  in  society,  belongs  to  it  by  every  side  of  his  exist- 
ence. How  can  he  believe  that  there  is  any  precise 
limit  between  the  social  and  the  individual  spheres  so 
that  certain  ethical  norms  are  created  by  the  individual 
activity  and  others,  which  we  call  legal,  by  the  social 
activity  ? 

We  must  then  disavow  all  these  definitions  of  law  by 
its  source  because  of  their  common  defect.  They  pre- 
suppose as  determined  one  of  the  most  difficult  of  ques- 
tions, the  one  most  discussed  in  the  science  of  law,  that 
of  its  origin.  Does  law  spring  up  as  a  result  of  indi- 
vidual activity?  Is  it  created  by  the  conditions  of  social 
life?  Does  its  existence  depend,  or  does  it  not,  upon 
that  of  the  state  ?  All  these  questions  are  still  widely  dis- 
cussed. Until  these  questions  as  to  the  origin  of  law 
are  settled,  it  will  remain  impossible  to  define  law  by 
means  of  its  source. 


94  THEORY  OP  LAW 


Section  12.    Definition  of  Law  as  Coercive  Norms 

IHERING.    Zweck  im  Recht.    B.  1.    2d  Edition,  1884.    s.  320. 
MERKEL.       Recht     und     Macht.       (Schmoller's     Jahrbuch     fur 
Gesetzgebung  B.  V.) 

BIERLING.      Zur   Kritik    der    Juristischen    Grundbegriff.     B.    I., 

1877. 

Already  in  the  middle  ages  it  was  quite  generally  ad- 
mitted that  constraint  was  the  essential,  distinctive  char- 
acteristic of  law.  This  opinion  was  everywhere  adopted 
from  the  beginning  of  the  last  century.  Law  as  a  sys- 
tem of  rules  enforced  by  constraint  was  then  opposed 
to  morals  which  admit  of  no  constraint,  which  require 
a  voluntary  submission.  Thomasius,  Kant,  and  above 
all  Fichte,  pushed  this  distinction  even  to  the  complete 
opposition  of  law  and  morals  which  they  considered  re- 
spectively as  rules  for  the  outer  and  inner  life  of  man. 
The  basis  of  this  contrast  was  certainly  the  dualistic 
conception  of  the  universe.  If  conformably  to  Descartes' 
doctrine  mind  and  matter  are  recognized  as  two  inde- 
pendent substances,  the  external  and  the  internal  life 
are  two  absolutely  separate  and  distinct  spheres.  There 
is  between  them  no  mutual  bond,  no  reciprocal  influ- 
ence. Each  of  them  exists  by  itself,  each  has  its  peculiar 
laws  and  in  each,  equally,  its  own  peculiar  forces  act. 
The  exterior  and  interior  life  would  be  opposite  poles. 
Consequently  the  exterior  order,  law,  could  not  be  up- 
held by  internal  agents.  It  rests  exclusively  upon  ex- 
ternal force,  upon  constraint.  Between  constraint  and 
the  forces  of  interior  life,  there  is  nothing  in  common. 
There  is  nothing  which  by  transition  unites  them.  There- 
fore constraint  can  have  no  internal  psychic  foundation. 
It  constitutes  the  independent  external  base  of  law's 
action.1 

1  Doppel  proposes  this  scholastic  argument:  "Quidam  volunt  Jus  dictum  esse 
per  metathesin,  ut  sit  jus  quasi  vis  conversis  literis." 


THE   CONCEPTION   OP  LAW  95 

Such  is  the  necessary  consequence  of  the  rigorous  and 
absolute  separation  of  the  internal  and  external  spheres 
of  human  activity.  This  separation,  as  we  know,  is 
completely  rejected  by  modern  science.  We  know  that 
our  moral  life  depends  upon  our  physical  vigor,  that 
even  physiological  phenomena  change  constantly  into 
psychic  ones  and  the  latter  into  physiological  ones  again. 
Their  rigorous  delimitation  is  often  impossible.  In  a 
word,  the  moral  and  physical  sides  of  our  existence  are 
not  two  sedulously  separated  parts;  on  the  contrary, 
they  interpenetrate,  so  to  say,  each  other  and  touch  at 
every  moment.  From  this  point  of  view  it  would  seem 
that  the  theory  which  claims  that  law  being  only  an  ex- 
ternal order  ought  to  be  based  solely  upon  constraint 
should  fall  of  itself.  If  the  moral  and  the  physical  life 
depend  upon  one  another,  external  constraint  necessarily 
provokes  internal  movements  and  the  theory  that  law  is 
an  external  order  ought  to  be  allowed  no  value.  This 
theory,  as  has  been  first  stated,  has  at  the  present  time 
no  meaning,  for  we  no  longer,  as  in  the  past,  oppose  ex- 
ternal and  internal  phenomena.  In  fact,  the  organic 
school,  which  starts,  as  has  been  said,  with  assuming 
the  mutual  dependence  of  all  phenomena  of  the  universe 
and  of  all  the  manifestations  of  human  life,  no  longer 
considers  law  as  a  system  of  external  conditions  and 
constraint  as  its  essential  attribute.  It  would  seem 
that  the  realists  who  extend  the  application  of  the  prin- 
ciple of  causality  to  all  phenomena  without  exception 
ought  to  be  the  first  to  rally  to  the  support  of  this  con- 
clusion. They  ought  to  reject  that  limitation  of  law 
and  of  morals  which  makes  of  the  first  an  external 
rule  resting  upon  constraint,  and  of  the  second  a  moral 
law  supported  by  internal  moral  agencies.  But  the 
phenomenon,  which  always  occurs  in  such  cases,  ap- 
pears here.  Realism  which  appeared  as  a  natural  reac- 
tion against  the  idealism  previously  all-powerful  in  the 


96  THEORY  OF  LAW 

science  of  law  has  fallen  into  the  contrary  excess.  Just 
as  formerly  the  gross  materialism,  which  referred 
everything  to  external  experience,  was  opposed  to  the 
theory  of  innate  ideas,  so  modern  realism  declines 
to  admit  into  the  domain  of  law  any  rule  which  has 
not  the  sanction  of  external  constraint  for  its  enforce- 
ment. 

This  theory,  widely  received  among  the  learned  who 
occupy  themselves  with  positive  law,  has  found  much 
support  and  a  general  theoretic  base  in  the  celebrated 
work  of  Ihering,  Zweck  im  Recht.1 

This  doctrine  contains  a  very  grave  error,  as  I  shall 
endeavor  to  prove.  Constraint  is  neither  a  fundamental, 
nor  even  a  general,  attribute  of  juridical  phenomena. 
First  of  all,  it  is  not  a  fundamental  attribute.  One 
calls  fundamental,  an  attribute  which  is  presupposed 
by  all  the  others  from  which  they  all  flow  in  such  sort 
that  without  it  the  phenomenon  could  not  be  conceived 
to  exist.  All  the  other  characteristics  depend  upon  the 
fundamental  one.  By  it  alone  can  we  conceive  a  phe- 
nomenon, since  it  carries  in  itself,  so  to  speak,  all  the 
rest. 

But  constraint  is  not  connected  with  law  in  this  man- 
ner. We  can  conceive  of  law  without  this  attribute. 
If  society  were  composed  only  of  perfect  men,  constraint 
would  be  superfluous  and  unknown.  Each  one  without 
stimulation  by  it  would  respect  the  right  of  another 
and  fulfill  his  own  duties.  Law  would  exist  none  the 
less,  for  in  order  to  fulfill  my  duties  and  render  to  each 
what  is  his,  I  must  know  wherein  my  duties  consist  and 
what  is  owed  to  each  one.  Even  in  the  real  society  of 
men  with  all  their  weaknesses  it  is  recognized  that 

1  Zweck  im  Recht.  1.  318.  "Die  gangbare  definition  lautet:  Recht  ist 
der  Inbegriff  der  in  einem  Staat  geltenden  Zwangsnormen  und  sie  in  meinen 
Augen  vollkommen  das  Richtige  getroffen.  Die  beiden  momente  welche  sie 
in  sich  schliesst  sind  die  der  Norm  und  die  der  Verwirklichung  durch  den 
Zwang." 


THE   CONCEPTION   OF  LAW  97 

society  is  the  more  normal  the  more  rarely  constraint  is 
used.1 

Inadmissible  is  the  law  which  is  supported  completely 
and  exclusively  by  constraint  alone;  inadmissible  a  state 
of  things  where  no  one  fulfills  voluntarily  his  juridical 
duty,  where  it  is  necessary  to  constrain  everybody  to 
obedience  of  the  law.  It  is  inadmissible  because  what 
power  is  there  to  be  charged  in  such  case  with  exercising 
the  right  of  constraint?2 

All  these  facts  are  so  clear  and  evident  that  those  who 
think  constraint  the  essential  attribute  of  law  dare  not 
affirm  that  it  suffices  for  its  enforcement.3  Commonly 
they  put  the  question  a  little  differently.  They  are  sat- 
isfied to  affirm  that  if  the  force  of  law,  its  power,  is  not 
based  on  constraint  alone,  constraint  is  nevertheless  an 
indispensable  supposition,  preceding  all  the  other  foun- 
dations on  which  the  predominance  of  law  might  be 
left  to  rest;  and  that  if  law  had  not  constraint  behind 
it,  all  the  other  bases  of  its  power,  religious  sentiments, 
utility,  etc.,  would  lose  their  effect.4  To  sum  up,  they 
say  law  supposes  reciprocity.  I  am  obliged  to  re- 
spect the  rights  of  another  if  he  respects  mine.  If  one 
attacks  me  unjustly,  I  am  not  bound  to  respect  his 
rights  while  doing  so,  vim  vi  repellere  licet.  This  is  why, 
to  fulfill  completely  our  juridical  duties,  it  is  necessary 
to  be  sure  that  they  are  observed  by  everybody.  For 
the  same  reason  juridical  norms  are  just  or  useful  only 

1  Ziller.     Allgemeine   philosophische   Ethik.     1880.      s.   221.     Man   ist    auch 
wenigstens    allgemein    xiberzeugt,    dass     Rechtsleben   urn    so     gesunder    sei,  je- 
weniger  zwang  angewendet  zu  werden  brauche. 

2  Ahrens.      Encyclopadie,     1857.       s.    43.       Trendelenburg.       Naturrecht,     s. 
19.    89.       Jellinek.      Recht,  Unrecht,   Strafe,  s.  50.     Bierling.       Zur  Kritik   der 
juristischen  grundbegriffe,  I.  1877.     s.  51.     Thilo.      Die  theologisirende  Rechts 
und  Staatslehre.     1861.     s.  330. 

3Ihering.  Zweck  im  Recht,  I.  s.  556.  Schaffle.  Bau  und  L«ben  des 
socialen  Korpers,  I.  1881.  s.  663. 

*  See  especially  Pichte.  "  Grundlage  des  Naturrechts."  1796.  I.  s.  163-179. 
Among  contemporary  writers,  Lasson,  "System  der  Rechtsphilosophie."  1882.  s. 
205-207. 


98  THEORY  OF  LAW 

if  they  are  generally  observed.  If  laws  were  observed 
only  by  reasonable  men  and  it  was  granted  to  others 
to  break  their  requirements,  the  most  righteous  law 
would  become  absurd.  That  law,  for  example,  is  very 
just  which  directs  the  killing  of  an  animal  attacked,  or 
suspected  of  being  so,  with  a  contagious  malady.  But 
it  is  just  only  if  everybody  observes  it.  If  some 
evil-minded  persons  neglect  it  all  the  losses  sustained 
by  the  upright  will  be  useless,  since  the  sick  animals 
kept  by  their  selfish  owners  will  suffice  to  spread  the 
malady. 

At  first  sight  these  arguments  appear  irrefutable.  But 
on  examining  them  it  is  not  difficult  to  show  that  they 
go  too  far  and  either  prove  nothing  or  too  much.  In 
fact,  if  law  can  really  be  observed  at  all,  only  on  condi- 
tion of  being  absolutely  and  rigorously  so  by  all  the 
world,  then  it  never  will  be  observed.  When  the  law  in 
force  has  a  coercive  sanction  it  may  still  be  broken. 
There  is  not  in  the  world  any  power  which  can  constrain 
every  one  to  obey  it.  Moreover,  men  in  general  do  not 
guide  their  conduct  by  certainty  since  it  is  hardly  ever 
to  be  had;  but  they  act  upon  probability,  which  answers 
practically  to  show  us  the  line  of  conduct  to  follow.  So 
far  as  concerns  law,  men  are  satisfied  with  a  probability 
of  its  observance  in  the  great  mass  of  cases.  Whether 
law  has  a  coercive  sanction  or  not,  there  never  is  as- 
surance that  it  will  be  observed  by  everybody  under  all 
circumstances.  Under  no  conditions  is  it  certain  that 
all  animals  attacked  by  contagious  maladies  will  be  de- 
stroyed as  quickly  as  possible;  but  that  this  requirement 
may  be  reasonable  it  answers  that  it  is  likely  that  most 
of  them  will  be,  for  thus  we  may  hope  that  the  disease 
will  not  spread  as  readily  as  before.  But  if  it  is  prob- 
able, even  before  its  publication,  that  the  law  will  be 
observed  in  most  cases,  constraint  does  not  go  for  noth- 
ing. Thus  it  is  almost  certain  that,  even  when  coercive 


THE  CONCEPTION  OF  LAW  99 

measures  are  taken  with  a  view  to  assuring  the  com- 
pletest  application  of  the  measure,  a  law  for  the  destruc- 
tion of  diseased  animals  will  be  observed  only  if  every- 
body thinks  it  useful. 

So  constraint  is  not  the  fundamental  attribute  of  the 
law.  Neither  is  it  an  attribute  common  to  legal  phe- 
nomena. The  theory  that  constraint  is  the  essential 
characteristic  of  law  has  been  able  to  take  form  and 
spread,  owing  to  a  special  fact.  As  Bierling  has  already 
shown,  general  questions  of  law  have  been  studied  hith- 
erto by  jurists  who  were  concerned  mainly  with  the  civil 
law.  General  dogmatic  instruction  is  ordinarily  given  in 
civil  law  studies.1  Moreover,  even  the  system  of  natural 
law  arose  chiefly  from  analysis  of  civil  law  institutions. 
But  it  is  only  necessary  to  turn  to  public  law  institu- 
tions to  be  satisfied  that  constraint  cannot  be  accounted 
a  common  characteristic  of  all  law.  To  begin  with  po- 
litical laws,  they  may  be  violated  by  the  government's 
organs  themselves.  It  may  be  asked  how,  in  this  case, 
can  constraint  be  used  to  sanction  the  violated  rights.2 
But,  perhaps  we  shall  be  told  that  a  preliminary  ques- 
tion belongs  here,  Is  public  law  really  law?  Does  not 
Rennenkampf  claim  that  public  law  has  not  a  rigor- 
ously juridical  character?3  Does  not  Gumplowicz  af- 
firm, for  his  part,  that  if  private  law  is  law,  then 
public  law  ought  not  to  be  so  called,  but  ought  to 
be  designated  by  some  other  term,  for  it  differs  quali- 
tatively?4 

Leaving  aside  for  the  moment  public  law,  even  in  the 
domain  of  civil  law  can  all  be  realized  by  constraint? 
Are  not  the  parties  often  without  possibility  of  real- 


1  Bierling.    L.  C.    s.  11.    Die  Lehre  von  den  allgemeinen  Grundbegriffen  gehorte 
gewissermasen  zur  Domaine  des  Privatrechts. 

2  Thon.     Rechtsnorm  und  subjektives  Recht.     1878.     s.  6. 

3  Sketch  of  Legal  Encyclopedia.     1868.     p.  159. 

4  Gumplowicz.     Rechts-staat  und  Socialismus.     s.  13. 


100  THEORY   OF  LAW 

izing  their  juridical  claims  because  the  judges  are 
too  indulgent  to  the  defendant,  or  because  he  has 
for  the  time  concealed  all  his  goods  in  some  secure 
place  F1 

The  opinion  which  we  are  setting  forth  may  be  other- 
wise expressed.  In  considering  constraint  as  an  essen- 
tial attribute  of  law,  it  cannot  be  affirmed  thereby  that 
every  concrete  juridical  claim  is  realized  by  constraint, 
but  only  that  all  laws  in  general  and  in  the  normal 
order  of  things  are  capable  of  being  realized  in  that 
way.  Therefore,  the  discussion  is  not  as  to  the  real  con- 
crete possibility  of  restraint,  but  as  to  an  ideal  supposed 
possibility.  If  this  is  so  it  cannot  be  said  that  every  law 
can  be  enforced  by  constraint.  It  must  be  said  only 
that  such  a  possibility  ought  to  exist.  The  question  thus 
put  becomes  exceedingly  vague.  In  every  case  the  ques- 
tion as  to  what  are  the  attributes  of  law  turns  into 
"what  ought  to  be  its  attributes."  Admitting,  more- 
over, this  manner  of  stating  the  question,  the  theory 
we  are  combatting  gains  nothing.  To  begin  with, 
there  are  norms  which  do  not  suppose  constraint. 
Those  whose  violation  brings  coercion  are  only  a 
part  of  juridical  norms.  If  they  are  considered  as 
the  only  juridical  norms,  it  will  be  necessary  to  ex- 
clude those  whose  violation  is  followed  by  punish- 
ment, for  to  punish  is  not  to  compel  the  observance  of 
the  rule  for  whose  violation  the  punishment  is  in- 
flicted.2 

It  is  not  difficult  to  show  that  the  observance  of  a 
good  many  laws  cannot  possibly  be  fully  enforced 
through  constraint.3  Those  to  whom  this  condition 

1  Geyer.    Phil.  Eint.  Holtzendorf  s  Encyclopadie.    4  Aufl.    1882.    s.  5. 

2  Thon.     Rechtsbegriff.     Grunhut's  Zeitschrift.     1880.     VII.     B.     Heft  2.     s. 
245. 

3  Kuhnast.     Ihering's   Definition  des  Rechts   (Beitrage  zur  Erlauterung     des 
deutschen  Rechts,  herausgbn.  von  Rassow  und  Kuntzel?      1880.     No.  2-4?)      s. 
155.     Es  scheint  aber  auch,  als  ob  die   Frage  wohl   aufgeworfen  werden  darf  ob 
uberhaupt  die  Erfullung  irgend  einer  Rechtspflicht  und  insbesondere  die  Leistung- 
sabischt  erzwingbar  ist. 


THE   CONCEPTION   OF  LAW  101 

is  applicable  are,  strictly  speaking,  norms  which  carry 
the  obligation  of  not  doing  something,  those  imposing 
obligation  to  give  up  something  or  its  profit.  But 
laws  requiring  of  a  person  an  act,  especially  a 
personal  act,  cannot  be  enforced  by  constraint.  A 
man  cannot  be  compelled  by  force  to  do  a  par- 
ticular task.  There  may  be  cases,  and  are  such  in 
fact,  where  the  man  will  prefer  to  submit  to  capital 
punishment  rather  than  to  an  act  contrary  to  his 
conscience  or  even  his  interest. 

In  all  this  discussion  in  speaking  of  constraint  physical 
constraint  is  meant.  The  whole  argument  relates  to 
that.  Constraint  can,  certainly,  be  understood  differ- 
ently. Thus,  Ihering  in  making  constraint  the  funda- 
mental attribute  of  law,  has  in  view  not  only  physical 
but  also  moral  constraint.  Why  not  give  it  this  large 
meaning?  If  it  is  taken  thus,  the  idea  of  constraint  is 
enlarged  so  as  to  make  the  discussion  useless.  If  con- 
straint is  regarded  as  including  both  physical  and  moral 
pressure,  it  certainly  does  accompany  all  juridical  phe- 
nomena. But  when  so  understood,  it  serves  as  the 
sanction  not  only  of  juridical  norms,  but  also  of  moral 
principles,  religious  dogmas,  and  even  the  "laws"  of 
logic  and  aesthetics.  The  conscious  violation  of  moral 
duty  is  inseparable  from  ideas  of  repentance,  of  fear  and 
of  contempt.  Sin  evokes  the  idea  of  wrath  and  chas- 
tisement from  God.  The  violation  of  the  rules  of  logic 
brings  error  and  uncertainty  in  results  obtained. 

The  violation  of  the  laws  of  beauty,  themselves,  finds 
a  sanction  in  the  discomfort  produced  by  ugly  spec- 
tacles. All  these  ideas  produce  the  same  moral  con- 
straint as  does  the  threat  of  legal  exaction,  or  punish- 
ment. In  this  broad  meaning  the  degree  and  character 
of  the  constraint  is  very  variable;  but  the  constraint 
applied  for  juridical  ends  is  far  from  being  the  severest. 
Fear  of  God's  wrath  or  infamy  may  be  vastly  greater 


102  THEORY   OF   LAW 

than  that  of  a  pecuniary  loss  or  a  few  days  in  prison. 
Moral  constraint  thus  cannot  be  regarded  as  the  essen- 
tial attribute  of  law.  It  forms  a  part  of  everything 
that  has  to  do  with  human  consciousness.  Conse- 
quently in  saying  that  law  is  supported  by  moral  con- 
straint we  mean  only  that  the  orders  in  juridical  norms 
are  addressed  to  the  human  conscience  and  nothing 
more. 

Thus,  there  cannot  be  recognized  in  constraint  the 
essential  and  distinctive  mark  of  law.  Doubtless,  and 
we  freely  admit  it,  constraint,  and  above  all  moral 
constraint,  plays  a  very  vital  part  in  law.  Its  im- 
portance comes  from  the  fact  that  the  development  of 
juridical  order  has  always  for  a  result  the  prevention 
of  all  violence.  However  undeveloped  a  society  may 
be,  juridically,  constraint  is  always  recognized  as  a 
means  of  social  authority.  In  our  day  the  organs  of 
authority  ought  to  use  constraint  only  to  compel  observ- 
ance of  legal  requirements.  Consequently  the  moral 
order  of  things  in  modern  society  is  such  that  physical 
constraint  is  employed  only  in  the  law's  service.  '  It  is 
only  in  this  sense  that  we  can  say  that  it  is  the  dis- 
tinctive attribute  of  law.  This  surely  does  not  mean 
that  it  is  the  general  characteristic,  or  indispensable 
basis,  of  law.  We  say  only  that  with  the  progress  of 
social  life  law  tends  to  put  itself  above  force  and  to  use 
it  only  so  far  as  it  is  a  valuable  means  for  enforcing  legal 
requirements.  It  is  very  important  that  public  powers 
have  in  general  monopolized  in  their  own  hands  the  use 
of  force.  It  serves  not  only  to  guarantee  social  peace; 
it  consolidates  the  rights  to  which  it  can  give  effect, 
and  which  do  not  thereby  lose  their  nature.  For  the 
same  reason  it  strengthens  all  other  rights.  The  realiza- 
tion of  a  right  by  constraint  impresses  men's  minds 
necessarily.  In  the  minds  of  the  great  mass,  who  know 
not  how  to  fix  limits  for  the  possible  application  of  con- 


THE  CONCEPTION  OF  LAW  103 

straint,   the  notion  of  law  becomes  involuntarily  asso- 
ciated with  its  coercive  enforcement. 

When  a  rudimentary  idea,  one  made  without  the 
aid  of  critical  analysis,  is  formed  of  law,  it  always 
carries  the  persuasion  that  all  laws  without  exception 
can  be  made  respected  by  force.  This  elementary  notion 
may  have  its  social  value,  but  has  none  in  science,  since, 
as  we  have  seen,  it  cannot  withstand  a  rigorous  analysis. 


104  THEORY  OP  LAW 


Section  13.    Formal  and  Utilitarian  Conceptions 

As  we  have  said,  our  conception  of  law  as  rules  for 
the  delimitation  of  interests  conflicts  with  two  con- 
trary opinions.  The  partisans  of  the  formal  tendency 
object  that  without  doubt  the  function  of  law  consists 
in  delimitation:  but  that  what  it  delimits  is  not  interests, 
but  individual  wills.  The  partisans  of  the  utilitarian 
tendency,  on  the  other  hand,  think  that  law  is  not  the 
delimitation,  but  the  protection  of  interests.  Let  us 
see  what  is  the  meaning  of  each  of  these  different  for- 
mulas, and  try  to  show  that  each  is  contaminated  with 
an  exclusiveness  which  prevents  our  accepting  either. 

The  formal  theory  of  law  is  the  older.  It  found  its 
birth  at  the  same  time  as  the  school  of  natural  law,  and 
is  characterized  by  individualism  and  by  its  mechanical 
theory  of  society.  It  reached  its  highest  development 
in  the  XVIII  century  in  the  doctrines  of  Thomasius, 
of  Kant,  and  of  Fichte.  These  authors  entirely  sepa- 
rated law  from  morality,  and  gave  a  character  rigorously 
formal  to  law.  They  saw  in  law  the  exterior  order  of 
human  relations.  Its  function  was  to  assign  to  each 
individual  an  inviolable  sphere  where  he  could  freely 
realize  his  own  will.  But  they  did  not  seek  to  know  in 
what  the  will  consisted  and  the  interests  which  cause 
it  to  act. 

The  predominating  influence  of  the  formal  theory  at 
the  beginning  of  the  XIX  century  and  during  the  pre- 
ceding one,  had  a  double  cause,  historical  and  theoretical. 
This  formal  theory,  which  considered  law  as  having  for 
its  sole  task  the  assigning  to  each  one  a  certain  sphere 
for  the  free  realization  of  his  will,  and  did  not  concern 
itself  about  the  use  which  the  individual  might  make 
of  his  liberty,  was  a  reaction  against  excessive  develop- 


THE  CONCEPTION  OF  LAW  105 

ment  of  government  tutelage.  The  administration  at 
this  time  thought  itself  called  upon  to  meddle  in  all 
the  details  of  personal  activity.  Legislation  undertook 
to  impose  upon  each  one  his  residence,  his  costume, 
what  he  should  do,  and  how  to  do  it. 

This  excessive  development  of  state  control  com- 
pletely destroyed  individual  initiative,  that  chief  agent 
of  social  progress.  The  state  legislated  as  to  matters 
of  conscience,  prescribed  religious  beliefs  and  persecuted 
those  who  departed  from  rigorous  orthodoxy.  Under 
such  conditions  it  was  necessary  to  set  limits  to  the 
state's  interference  in  the  sphere  of  individuality  by 
giving  to  the  individual  himself  a  sphere  of  autonomous 
activity.  Such  was  the  historical  basis  of  the  formal 
theory  of  law.  Its  theoretical  basis  rested  on  the  his- 
toric notion  of  human  society  which  was  dominant  at 
that  time. 

When  we  consider  society  as  a  simple  and  mechanical 
aggregate,  composed  of  a  certain  number  of  individuals, 
when  we  do  not  see  in  the  individual  a  product  of  social 
life,  but  when  society  itself  appeared  as  the  result  of  a 
social  contract;  when,  in  a  word,  the  mechanical  theory 
of  society  was  accepted,  at  such  a  time  the  individual 
with  his  conscious  will  might  be  regarded  as  the  one 
activity  in  social  life.  The  social  order  according  to 
this  theory  consists  in  the  delimitation  of  different 
spheres  assigned  for  the  activity  of  the  different  indi- 
viduals making  up  society.  The  sphere,  so  assigned  to 
each  one,  and  in  which  his  will  is  all  powerful,  is  con- 
sidered as  constituting  his  right  in  the  subjective  sense. 
The  rules  which  control  the  individual  wills  constitute 
the  objective  law. 

Once  formulated,  this  idea  of  law  has  been  admitted 
even  by  authors  who  have  abandoned  the  mechanical 
theories  of  society.  Hegel,  who  thinks  that  the  interests 
of  the  individual  ought  to  be  subordinated  to  the  social 


106  THEORY   OP  LAW 

order,  whose  end  is  the  realization  of  morality,  under- 
stands law,  nevertheless,  in  a  purely  formal  manner. 
The  theory  of  the  will  receives,  too,  in  him  a  peculiar 
development.  With  Kant  the  individual  will  is  limited 
by  ourselves;  with  Hegel  by  will,  itself,  but  by  the 
objective,  general  will,  which  is  expressed  in  the  state's 
organization.  So  the  notion  of  law  for  Hegel  comes 
altogether  from  that  of  will;  law  for  him  is  a  delimita- 
tion of  the  individual  subjective  will,  by  a  general 
objective  one. 

The  doctrines  of  Kant  and  of  Hegel  exercised  a  very 
great  influence  over  legal  literature  in  the  first  half  of 
the  XIX  century.  It  is  not  astonishing  that  the  formal 
theory  which  considers  law  as  the  delimitation  of  the 
will  has  maintained  until  now  its  importance.  We  find 
it  very  often  in  the  definitions  of  current  manuals.1 
But  historical  conditions  having  changed  and  the 
organic  doctrine  having  taken  the  place  of  the  mechani- 
cal theory  of  society,  this  view  has  been  somewhat 
abandoned. 

Intervention  of  the  state  with  the  sphere  of  the 
individual  is  actually  limited  in  all  countries,  and  in 
certain  ones  even  too  much  so.  Individual  liberty  is 
almost  universally  recognized.  To  the  old  preoccupa- 
tions which  gave  birth  to  the  formal  theory  of  law,  have 
succeeded  new  ones  inspiring  other  tendencies.  The 
individual  man  freed  from  state  tutelage  has  not  been 
found  to  be  as  free  as  was  expected.  When  intervention 
of  the  state  was  suppressed  it  was  perceived  for  the  first 
time  in  what  dependence  individuals  find  themselves 
with  respect  to  society,  in  what  degree  the  disinherited 
are  subject  to  the  wealthy. 

But  the  state,  so  far  as  it  represents  the  conception  of 
morality,  cannot  admit  that  the  highest  interests,  for 

1  Windscheids  Pandekten  1.  sec.  37.  Kuntz.  Wendepunkt  der  Jurispru- 
dentz  32. 


THE   CONCEPTION   OP   LAW  107 

example  public  health  and  safety,  should  be  subjected 
to  lower  interests,  simply  because  these  last  have  force 
on  their  side.  A  new  appeal  is  made  for  its  interven- 
tion, which  is  necessary  in  order  that  the  liberty  of  the 
weaker  be  protected  against  the  strong,  and  so  it  becomes 
necessary  to  enlarge  the  sphere  of  legislation.  The 
law  may  not  content  itself  with  delimiting  the  spheres 
for  the  realization  of  individual  wills.  It  is  obliged  to 
take  into  consideration  the  different  interests,  which 
make  up  those  spheres  themselves.  All  these  ques- 
tions, set  by  life  itself,  have  had  as  a  result  a  new  manner 
of  understanding  the  law.  The  first  school  to  oppose 
itself  to  the  formalism  of  the  old  legal  theories  was  the 
organic  school  represented  by  Krause,  Ahrens  and 
Roder. 1 

Having  rejected  the  mechanical  theory  of  society 
this  school  naturally  could  not  continue  to  understand 
law  as  a  combination  of  rules  directing  individual 
wills.  The  notion  of  law  which  it  has  developed  is  much 
wider.  According  to  it,  law  is  the  combination  of  con- 
ditions necessary  for  the  harmonious  development  of 
the  individual.  It  also  defines  subjective  right,  as  indi- 
vidual will  limited  by  legal  rule. 

The  first  writer  who  separated  completely  the  defini- 
tion of  law  from  that  of  will  is  Ihering,  in  the  third 
volume  of  his  Geist  des  Romischen  Rechts.  For  him 
subjective  right  is  not  a  will  which  can  be  limited.  He 
replaces  the  will  by  interests.  The  social  work  of  law 
is  the  protection  of  interests,  not  the  delimitation  of 
wills.2 

Ihering's  conception  of  the  social  functions  of  law 
offers  doubtless  advantages  over  the  theories  which 
define  law  as  the  delimitation  of  wills.  In  the  old 
theories  legal  science  maintained  a  strictly  formal  char- 

1  Ahrens.     Encyclopadie  51. 

2  Geist  des  Romischen  Rechts,  III.  sec.  60. 


108  THEORY  OF  LAW 

acter  which  took  no  consideration  of  the  subjects  of 
human  activity,  the  aspirations,  the  needs,  the  neces- 
sities, which  guide  it,  but  only  of  its  external  forms. 
So  understood,  jurisprudence  cannot  show  the  social 
value  of  legal  institutions,  nor  the  conditions  which  have 
caused  them,  nor  the  ends  to  whose  realization  they 
lead. 

On  the  contrary  a  jurist,  who  considers  law  as  the 
juridical  protection  of  interests,  is  led  involuntarily  to  a 
more  complete  study  of  existing  institutions.  In 
examining  the  interests  which  direct  human  activity 
and  which  are  protected  by  the  law  to  which  they  gave 
birth  it  is  possible  for  him  to  pass  beyond  the  limit  of  a 
simple  study  of  legal  forms  of  protection.  He  explains 
the  reasons  for  this  protection,  its  influence  upon  the 
progress  and  development  of  social  life,  how  it  con- 
tributes to  progress,  and  how  hinders  it.  He  becomes 
able  to  understand  the  historic  alteration  in  legal  forms 
by  applying  himself  to  the  study  of  the  changes  in  the 
character  and  tendency  of  the  interests  protected  by 
them.  With  respect  to  the  legal  forms  in  force,  espe- 
cially the  newly  established  ones,  he  reaches  the  possi- 
bility of  exhibiting  them  clearly,  and  developing  fully 
their  beginning  before  him  in  scarcely  recognized 
embryo,  so  that  by  recognizing  the  alteration  of  inter- 
ests we  can  predict  also  the  changes  in  the  forms 
of  their  legal  protection,  or  at  least  foretell  their 
tendency. 

These  changed  notions  of  law  have  necessarily  exer- 
cised, and  are  exercising  each  in  its  turn,  their  influence 
upon  the  legislator.  The  first  separates  him  from  life 
and  the  other  brings  him  in  contact  with  it.  The  will, 
regarded  apart  from  its  material  manifestation,  appeared 
the  same  in  all  the  world  as  one  of  the  general  forms  of 
life.  Hence  the  idea  that  law  is  independent  of  condi- 
tions of  time  and  place,  and  that  it  is  possible  to  justify 


THE   CONCEPTION   OP  LAW  109 

oneself  in  promulgating  law  upon  considerations 
wholly  abstract.1  On  the  other  hand,  interests 
vary  indefinitely  with  different  persons,  times  and 
places. 

The  legislator  who  takes  into  consideration  the  mate- 
rial of  law  has  to  study  the  manners  of  the  society  for 
which  his  laws  are  designed.  With  our  conception  of  it, 
it  is  impossible  to  write  laws  without  previously  study- 
ing the  interests  of  society.  The  conditions  of  social 
life  with  which  the  legislator  has  to  do  are  local  and 
concrete,  and  not  abstract  ones. 

So  that  following  the  idea  just  given  of  law  we  assign 
to  the  legislator  a  function  very  extensive  and  complex. 
If  we  protect  the  will  without  concerning  ourselves  with 
the  use  which  the  subjects  are  going  to  make  of  such  a 
right,  of  course  only  very  general  conditions,  under 
which  the  protecting  help  shall  be  extended,  can  be 
established.  These  conditions,  moreover,  are  generally 
negative,  and  are  limited  to  protecting  the  individual 
against  direct  infringement  of  his  right.  On  the  con- 
trary, if  the  legislator  proposes  to  protect  interests.,  the 
conditions  of  protection  have  in  view  the  peculiarities  of 
each  interest,  and,  consequently,  can  be  of  a  positive  kind. 

The  comparison  of  these  contrasting  theories  leads 
to  the  preference  of  Ihering's,  but  other  arguments  can 
be  found  to  show  that  the  theory,  which  assigns  to  law 
only  the  function  of  delimiting  wills,  does  not  conform 
to  the  real  phenomena  of  juridical  life  and  that  among 
these  phenomena  are  several  which  it  leaves  without 
explanation. 

1  Stein,  himself,  despite  the  essentially  historical  character  of  his  theories, 
is  led  by  his  manner  of  understanding  law,  which  he  borrowed  from  Hegel,  to 
affirm  that  law  in  its  fundamental  principle  is  quite  opposed  to  its  own 
matter,  that  it  does  not  arise  from  the  activities  of  life  but  by  means  of  the 
simple  idea  of  it  (Gegenwart  94),  and  still  further  he  affirmed  that  law  by 
itself  has  no  history  and  that  what  we  are  accustomed  to  call  its  history  is 
the  history  of  life  in  those  relations  in  which  it  turns  to  legal  ideas.  Id., 
page  100. 


110  THEORY  OF  LAW 

In  the  different  legislative  rules  in  force  one  can  find 
institutions  which  do  not  simply  protect  the  will,  but 
protect  it  only  as  it  is  applied  to  the  realization  of  an 
interest  which  is  thought  worthy  of  protection.  Of 
this  fact  a  very  general  example,  which  the  whole  world 
recognizes,  can  be  cited.  Justice  does  not  enforce  all 
contracts,  but  only  those  pertaining  to  an  interest  of 
some  importance.  No  tribunal  would  attempt  to  com- 
pel performance  of  an  agreement  to  dance  the  waltz 
at  a  party  with  a  particular  person.  No  one  would 
think  the  interest  resulting  from  such  an  agreement 
enough  for  the  law  to  be  applied  to  vindicate  it.1 

Besides  those  interests  which  are  not  essential,  those 
which  are  contrary  to  morals  are  not  protected,  and 
the  law  refuses  its  protection  to  contracts  concerning 
them.  So,  contracts  having  protection  as  their  object 
are  not  sanctioned  by  any  tribunal. 

One  can  also  show  the  inconsistency  of  the  old  theory 
by  demonstrating  that  persons  who  have  no  wills  are 
nevertheless  invested  with  certain  rights.  For  example, 
the  law  protects  the  interests  of  unborn  infants,  idiots 
and  the  insane. 

Finally,  the  protection  of  interests  takes  place  some- 
times at  the  instance  of  the  individual,  and  sometimes 
contrary  to  it.  We  find  examples  of  such  protection 
in  the  institution  of  guardianship  of  minors  and  spend- 
thrifts, in  compulsory  instruction  and  compulsory  vac- 
cination. 


1  By  Am.  Translator.  The  explanation  of  this  in  our  manuals  of  the 
law  of  contracts,  viz.,  that  the  parties  themselves  make  such  agreements  with 
the  understanding  that  they  are  not  binding,  either  offers  no  explanation,  or 
is  an  instance  of  the  illegitimate  use  of  fiction  for  that  purpose,  like  that  of 
corporate  personality  mentioned  below  in  this  section.  Such  understanding 
either  arises  from  the  nonenforcement,  which  is  sought  to  be  explained,  or  is 
a  pure  fiction.  Usually  it  is  the  latter,  and  the  matter  of  nonenforcement  is 
not  at  the  time  adverted  to  by  either  party.  The  vera  causa,  unquestion- 
ably, is  the  insignificance  of  the  interest  in  question.  De  minimis  non  curat 


THE   CONCEPTION   OF   LAW  111 

So  that  if  we  make  the  will  the  subject-matter  of  law, 
it  is  impossible  to  explain  its  institutions  because  there 
are  laws  whose  object  is  not  the  protection  of  any  indi- 
vidual will.  On  the  contrary,  no  law  can  be  cited  which 
does  not  protect  some  interest,  if  the  law  is  actually  in 
force.  Without  doubt  many  legal  institutions  find  a 
rational  and  sufficing  explanation  in  the  theory  which  sees 
in  the  law  only  a  delimitation  of  wills.  This  does  not 
prevent  the  defining  it  as  a  protection  of  interests,  for 
the  fact  that  a  definite  sphere  is  guaranteed  to  the 
individual  for  the  free  realization  of  his  will,  establishes 
also  an  interest;  consequently,  in  defining  law  as  the 
protection  of  interests,  we  regard  it  from  a  more  general 
point  of  view.  This  definition  embraces  the  preceding 
one,  which  looks  only  to  a  particular  case  of  the  protec- 
tion of  interest. 

It  is  necessary  to  add  also  that  in  understanding  law, 
as  the  delimitation  of  wills,  one  necessarily  shows  him- 
self a  partisan  of  the  individualistic  conception.  The 
will  is  always  individual.  Each  one  has  his  will;  and 
this  is  why,  in  admitting  this  theory,  it  becomes  neces- 
sary to  oppose  the  individual  and  his  rights  to  society. 
Meanwhile,  the  real  legal  order  presents  a  good  many 
rights  which  cannot  be  connected  with  any  particular 
individual.  The  theory  based  upon  the  will  can  explain 
a  good  many  phenomena  only  by  an  appeal  to  the 
theory  of  legal  persons,  to  whom  are  accorded  rights 
analogous  to  those  conferred  upon  individuals.  But 
the  judicial  person  is  a  fiction  by  means  of  which  some 
group  of  persons,  or  some  undetermined  one,  is  con- 
sidered as  a  distinct  person,  and,  like  an  individual,  is 
endowed  with  rights  and  obligations.  There  may  be 
cited  as  belonging  to  this  class  of  ideas  the  loan  societies, 
the  various  corporations,  benevolent  societies,  etc.  For 
the  purposes  of  legal  construction  this  kind  of  fiction  is 
perfectly  legitimate,  it  simplifies  the  explanation  of 


112  THEORY  OF  LAW 

certain  acts.  But  it  loses  all  value  when  resorted  to  for  a 
philosophical  explanation  of  the  existence  of  rights  which 
do  not  belong  to  any  individual.  In  such  a  case  fiction? 
ought  not  to  be  employed.  However,  by  replacing 
"will"  with  "interests"  we  can  explain  the  phenomena 
without  employing  fictions.  The  will  is  an  attribute  of 
human  personality.  Men's  interests,  on  the  contrary, 
are  very  little  determined  by  their  individual  organiza- 
tion. For  the  most  part  interests  are  products  of  social 
conditions  and  have  therefore  a  social  character.  The 
interests  of  mankind  cannot,  like  man's  will,  be  opposed 
to  those  of  society.  Most  interests  are  common  to  all 
men,  others  are  at  least  common  to  some  distinct  groups 
of  persons,  and  it  is  only  a  very  few  which  have  a  strictly 
individual  character.  So  in  understanding  law  as  the 
legal  protection  of  interests  we  are  led  to  replace  the 
individualist's  with  the  social  theory.  Law  is  not  con- 
sidered as  something  which  the  individual  opposes  to 
society,  but  something  that  society  has  created  and 
which  it  gives  to  the  individual.  In  fact,  the  theory  of 
Ihering  and  his  partisans  presents  itself  to  us  under  this 
aspect  as  the  social  theory  of  law. 

Nevertheless,  despite  its  value,  Ihering's  conception 
cannot  be  accepted  without  submitting  it  to  extensive 
modifications.  His  point  of  view,  that  law  is  a  protec- 
tion of  interests,  cannot  be  accepted.  If  one  holds  to 
this  definition  of  law  he  is  compelled  to  recognize  that 
if  in  society  a  single  interest  alone  was  protected  to  the 
exclusion  of  all  others,  this  protected  interest  would 
nevertheless  have  a  legal  right,  and  that  consequently 
the  relations  which  the  man,  possessing  it,  would  have 
with  his  fellows  would  be  legal  relations.  Such,  for 
example,  would  be  the  relations  of  a  despot  with  an 
oppressed  people;  those  of  a  father  with  the  rest  of  his 
family  who  do  not  enjoy  legal  rights;  those  of  citizens 
with  foreigners  at  a  time  when  these  latter  had  no  legal 


THE   CONCEPTION   OP  LAW  113 

rights;  those  of  a  master  with  a  slave.  But  all  this 
contradicts  the  truth  that  one  can  exercise  a  legal  right 
only  in  connection  with  persons  who  are  also  subjects 
of  law,  that  juridical  relations  are  only  possible  between 
persons  who  enjoy  legal  rights.  One  can  have  a  right 
"over"  a  slave  but  not  "with"  him.  The  interest  pro- 
tected by  the  law  which  consists  in  disposing  at  pleas- 
ure of  the  slave's  life  is  restrained  and  limited  in  its 
realization  not  by  the  slave's  interests,  which  are  not 
taken  into  consideration  or  protected,  but  by  those  of 
other  persons  who  do  possess  legal  rights;  by  those, 
for  instance,  of  the  true  owner  who  has  given  me  the 
right  to  employ  the  slave's  services.  It  is  the  interests 
of  this  man  which,  like  my  own,  are  protected  by  the 
law.  On  the  other  hand,  we  cannot  have  a  right  "over" 
persons  who  possess  their  legal  rights.  So,  when  you 
make  a  contract  of  hiring  with  a  domestic,  you  have  a 
right  in  connection  with  the  person  whom  you  take  into 
your  service,  but  not  "over"  him.  Your  right  is  only 
to  his  labor. 

Our  Professor  Mouromtzev  thought  he  avoided  this 
difficulty  by  adding  to  his  definition  of  law,  that  law  is 
protection  given  by  society  to  an  individual,  having  for 
its  end  only  the  guaranteeing  of  him  against  obstacles 
coming  from  other  members  of  the  society.  He 
regarded  the  law  as  a  peculiar  form  of  society's  influence 
over  human  relations.  Men's  relations  are  made  com- 
plex generally  by  the  effect  of  the  special  situations  in 
which  they  are  worked  out,  of  the  society  in  which  men 
live.  Society  is  naturally  disposed  to  assist  men  when 
they  seek  to  establish  relations  with  each  other.  This 
social  assistance  may  come  in  two  ways.  First,  It  may 
be  employed  with  a  view  to  removing  obstacles  thrown 
in  the  way  by  men  not  belonging  to  the  local  society. 
Mouromtzev  calls  this  the  first  "modality"  of  protection. 
Second,  Society  protects  the  relations  which  some  of  its 


114  THEORY   OF   LAW 

members  have  with  each  other  against  attacks  by  per- 
sons who  are  equally  parts  of  its  organization.  It 
appears  under  two  forms,  organized  and  unorganized. 
Organized  protection  is  distinguished  from  the  other 
by  following  a  course  of  procedure  settled  beforehand, 
and  by  means  specially  designed  to  do  this.  This  form 
of  protection,  determined  beforehand,  is  the  law,  accord- 
ing to  Prof.  Mouromtzev's  definition.  Consequently,  the 
law  is,  for  him,  not  the  whole  means  of  protection,  but 
only  socially  organized  protection  directed  against  the 
dangers  that  come  from  within  the  society  itself.  This 
rectification  of  Ihering's  formula  presents  no  advantage. 
It  comes  necessarily  to  the  denial  of  all  international 
law  whose  subjects  are  precisely  members  of  different 
societies.  Besides  Mouromtzev,  to  be  consistent  with 
himself,  must  deny  the  validity  of  some  parts  of  inter- 
national law  whose  juridical  character  is  incontestible. 
To  be  sure,  while  holding  to  his  theory  one  can  still 
attribute  a  juridical  character  to  that  protection  of  inter- 
ests which  is  brought  about  by  the  aid  of  collective  meas- 
ures, with  the  co-operation  merely  of  the  international 
community,  because  under  this  hypothesis  we  have  a 
protection  given  by  the  international  community  to 
one  of  its  members;  but  it  is  impossible  on  this  theory 
to  affirm  the  juridical  character  of  the  prohibition 
against  a  foreigner's  reprinting  a  book  without  the 
author's  permission.  In  this  case,  and  in  other  analo- 
gous ones,  the  protection  having  for  object  to  prevent 
a  fact  from  taking  place  on  territory  not  subject  to  the 
legal  group,  could  not  be  regarded  as  juridical  protec- 
tion according  to  Mouromtzev's  definition.  Too  narrow 
in  this  hypothesis,  the  definition  on  analysis  is  found  to 
be  too  large  in  other  cases.  It  extends,  in  fact,  to  the 
attributing  of  a  juridical  character  to  the  protection 
which  is  given  against  the  act  of  an  individual  who  is  a 
part  of  the  local  group,  but  who  enjoys  no  legal  rights 


THE   CONCEPTION  OF  LAW  115 

and  has  no  interests  guaranteed  by  law.  The  rela- 
tions of  a  master  with  a  slave  deprived  of  all  rights,  and, 
in  general,  our  relations  with  individuals  outside  of  the 
pale  of  the  law  would  have  to  be  recognized  as  juridical. 
All  these  consequences  resulting  from  the  formula 
which  we  are  combatting  are  avoided  if  our  definition 
is  accepted.  The  function  of  law  consists,  in  our  view, 
not  in  the  protection  but  in  the  delimitation  of  interests. 
Consequently,  juridical  relations  can  exist  only  with 
persons  who  have  legal  rights,  and  whose  interests  are 
placed  under  the  protection  of  the  law.  Where  the 
protected  interest  exists  only  on  one  side  there  can  be 
no  delimitation  of  interests.  In  such  a  case  the  pro- 
tected interest  absorbs  completely  what  is  not  protected. 
It  is  necessary  to  observe  that  the  utilitarian  definition, 
according  to  which  it  is  the  function  of  law  to  protect 
interests,  leads  in  its  logical  consequences  to  an  exces- 
sive intervention  on  the  part  of  the  state.  The  pro- 
tection of  interests  supposes  naturally  the  choice  of 
the  best  means  for  their  realization.  It  results  that  if 
the  task  of  the  law  is  to  protect  interests,  it  ought  to 
compel  the  citizens  to  adopt  in  the  realization  of  their 
interests  the  means  which  are  considered  the  best  and, 
consequently,  might  stifle  completely  the  personal  initia- 
tive, that  capital  agent  in  social  development.  The 
delimitation  of  interests,  on  the  contrary,  checks  only 
their  collision  without  mingling  itself  with  the  choice 
of  means  for  realizing  them.  To  the  degree  that  realiza- 
tion of  the  given  interest  does  not  prevent  that  of  others 
it  is  determined  only  by  the  extent  of  opportunity  and 
the  requirements  of  morals  without  being  regulated  by 
legal  rules.  If  we  assign  to  the  law  as  its  function  the  de- 
limitation of  interests  it  stands  thus  between  these  two 
extremes,  between  the  indifference  to  individual  action 
which  the  formal  conception  of  law  requires,  and  the  sup- 
pression of  individual  independence  which  would  seem  to 
be  the  logical  consequence  of  the  utilitarian  theory  of  law. 


CHAPTER  III 

HYPOTHESIS  OF  NATURAL  LAW 
Section  14.    General  Characteristics 

The  matter  constituting  juridical  norms  is  extremely 
variable  according  to  time  and  place.  The  same  inter- 
ests are  differently  delimitated  by  law  in  different  states 
and  at  different  historical  epochs.  From  this  fact  it 
seems  to  result  that  the  matter  making  up  juridical 
norms  depends  wholly  upon  the  free  choice  of  men, 
that  law  is  the  voluntary  and  intended  work  of  human- 
ity. But  by  the  side  of  variable  and  temporary  ele- 
ments of  law,  can  be  found  elements  imposed  by  objective 
necessity.  Although  the  judgments  of  man  vary  in  the 
course  of  society's  historic  evolution,  we  find,  neverthe- 
less, that  the  conceptions  of  law  and  non-law  which  are 
formed  in  us  in  one  way  or  another  cannot  be  modified 
at  will;  so  that  in  the  history  of  almost  all  legislatures, 
we  can  find  cases  where  attempts  to  borrow  foreign  legis- 
lation, or  to  put  in  force  unsuitable  theoretical  prin- 
ciples of  law,  have  wholly  failed.  The  will  of  the  legis- 
lature encounters  obstacles  in  social  conditions  and  the 
law,  after  being  promulgated,  remains  a  dead  letter  and 
is  not  applied. 

We  are  forced  to  recognize  in  the  law,  by  the  side  of 
this  variety  and  diversity,  elements  imposed  by  objective 
necessity.  The  presence  of  these  elements  has  been 
observed  by  the  very  earliest  savants  who  attempted  a 
scientific  explanation  of  legal  phenomena.  It  was  neces- 
sary to  fix  that  element  of  law  which  appeared  to  arise 
without  the  action  of  man.  As  there  was  not  until  the 
XVIII  century  any  accurate  notion  of  regular  historical 
evolution,  following  certain  laws,  they  found  themselves 

116 


THE   CONCEPTION  OF  LAW  117 

in  the  alternative  of  considering  law  as  instituted  by 
man,  entirely  arbitrary,  governed  by  no  necessity,  or 
else  as  something  immediately  provided  by  nature  and, 
consequently,  unchangeable  and  independent  of  men's 
wills.  The  first  of  these  points  of  view  is  superficial, 
contrary  to  the  inevitable  character  of  law,  and  did 
not  satisfy  even  minds  which  were  not  prepared  to 
appreciate  the  problem  of  law's  origin.  The  second 
point  of  view  resulted  in  the  theory  of  natural  law 
unchangeable,  eternal,  and  universal,  resulting  neces- 
sarily from  man's  nature  and  independently  of  his  will. 

It  is  a  seductive  hypothesis.  It  assimilates  legal 
norms  to  laws  of  nature.  Instead  of  subjecting  man  to 
arbitrary  orders  from  his  fellows,  it  subjects  him  to 
unchangeable  orders  of  nature.  Instead  of  an  artifi- 
cial and  conventional  law  it  sets  up  a  natural  and  neces- 
sary one ;  but  this  hypothesis  finds  in  the  fact  of  variety  and 
inconsistency  of  law  an  irrefutable  objection.  If  there 
exists  a  natural  law  which  is  unchangeable  and  eternal, 
how  can  a  positive  law  which  is  imperfect  find  a  place 
beside  it?  Despite  all  this,  the  manner  in  which  the 
question  was  put  being  granted,  and  granted  that  it 
was  necessary  to  choose  between  arbitrary  man-made 
law  and  it,  the  hypothesis  of  natural  law  becomes  the 
only  possible  explanation  for  that  character  of  necessity 
and  generality  which  belongs  to  law. 

Despite  the  sure  manifestation  of  variable  elements, 
which  seemed  to  contradict  its  necessary  character, 
every  reflective  mind  was  compelled  to  recognize  in  law 
an  objective  necessity  and  not  a  purely  human  creation 
only.  Practicing  lawyers  alone  could  be  brought  to 
deny  the  hypothesis  of  natural  law.  It  appeared  incon- 
testable as  soon  as  the  question  was  examined,  from  the 
philosophic  point  of  view.  For  several  centuries  this 
hypothesis  ruled  without  division,  and  was  almost 
unanimously  accepted  as  the  scientific  explanation  of  law. 


118  THEORY   OF  LAW 

Appearing  for  the  first  time  in  Greece,  with  Socrates, 
it  was  strongly  developed  by  the  Roman  jurists.  They 
considered  natural  law  as  a  common  and  indispensable 
element  of  all  law  in  opposition  to  the  vagaries  of 
national  legislation.  In  the  philosophy  of  the  middle 
ages,  conformably  to  the  religious  tendencies  of  that 
time,  natural  law  was  identified  with  divine  law,  eternal 
and  unchangeable,  to  which  were  opposed  variable 
human  laws.  In  the  XVII  and  XVIII  centuries,  under 
the  influence  of  the  dominant  rationalism  the  theory  of 
natural  law  wholly  separated  again  from  all  religious 
basis,  and  natural  law  once  more  was  considered  as  an 
abstract  system  which  was  derived  by  logical  necessity 
from  man's  reasonable  nature  and  which  existed  by  the 
side  of  the  positive  law. 

It  is  only  the  historical  school,  represented  by  Hugo 
and  Savigny,  which  has  refuted  for  the  first  time  in  a 
philosophical  way  the  hypothesis  of  natural  law.  This 
was  not  the  result  of  chance,  but  of  the  logical  tendency 
of  the  school,  which  applied  to  the  explanation  of  law 
the  historical  conception.  The  historic  study  of  law 
existed  previously,  but  the  historic  conception  appeared 
only  with  this  school.  In  the  XVI  century  the  French 
jurists,  with  Cujas  as  their  chief,  studied  the  history  of 
Roman  law;  but  their  labors  were  only  historic  researches. 
They  sought  to  reconstitute  the  old  Roman  juridical 
life  and  nothing  more.  There  was  no  question  of  the 
process  of  historic  development.  It  could  not  be  other- 
wise, for  the  idea  of  historic  evolution  had  not  yet  been 
formulated.  It  appeared  only  in  the  XVIII  century, 
thanks  to  the  labors  of  Vico,  Montesquieu,  and  Herder. 
The  historic  school  has  great  value,  especially  because 
it  applied  to  the  study  of  law  the  new  conception  of  a 
regular  historic  evolution.  This  conception  led  it  to 
deny  the  hypothesis  of  natural  law.  The  regular  char- 
acter, and  by  consequence  the  necessity,  of  the  develop- 


THE  CONCEPTION  OF  LAW  119 

ment  of  law  historically  being  ascertained,  this  hypoth- 
esis was  no  longer  indispensable.  Doubtless,  law  is  in 
part  necessary  and  independent  of  man's  will,  but  the 
regularity  of  its  development  best  explains  its  necessity. 
This  explanation  has  the  advantage  of  harmonizing  at 
the  same  time  with  the  idea  of  the  variety  and  of  the 
variability  of  legal  institutions.  The  doctrine  of  the  his- 
toric school  easily  overcame  the  theory  of  natural  law. 
Neither  Hugo  nor  Savigny  saw  any  need  to  spend  much 
time  upon  its  refutation.  These  authors  simply  opposed 
to  that  theory  the  idea  of  historic  evolution.  This  the- 
ory, when  put  forward,  took  away  at  once  the  main 
foundation  for  the  old  one;  that  is  to  say,  the  legal  phi- 
losopher was  no  longer  in  the  alternative  of  choosing  be- 
tween the  natural  law  theory  and  the  arbitrary  charac- 
ter of  law.  The  historic  school  showed  that  it  was  pos- 
sible to  solve  the  problem  while  avoiding  this  alternative. 
Law  is  not  formed  directly  by  nature,  nor  is  it,  either, 
an  arbitrary  creation  by  man.  Law,  according  to  the 
doctrine  of  the  historic  school,  is  a  product  of  social  life 
which  follows  in  its  evolution  a  regular  advance,  and  to 
that  extent  is  necessary.  It  is  not  created  by  the  arbi- 
trary will  of  individuals,  but  by  the  steady  inevitable 
advance  of  human  development.  Being  neither  arbi- 
trary nor  natural,  law  is  a  historic  necessity. 

However,  the  historic  school  did  not  give  to  this  idea 
of  regular  historic  development,  a  formula  so  general. 
It  saw  in  law  a  product  not  of  human  society,  but  of 
each  separate  people.  Law,  for  it,  is  exclusively  national 
and  ought  to  be  defined  as  a  product  of  the  conscious 
spirit  of  a  people,  whose  qualities  determine  the  con- 
tent of  each  national  legal  system.  At  the  same  time, 
the  national  mind  is  not  conceived  as  forming,  develop- 
ing, and  gradually  changing  itself.  On  the  contrary, 
they  believed  that  each  people  at  its  appearance  on 
the  arena  of  history  had  already  its  popular  genius  defi- 


120  THEORY  OF  LAW 

nitely  established  and  containing  in  itself  all  the  his- 
toric life  of  the  people.  In  other  terms,  this  school 
comprehended  the  historic  development  as  an  organic 
and  not  a  progressive  one,  not  as  an  evolution.  This 
was  not  meant  to  affirm  that  the  development  of  law 
is  the  creation  of  some  new  factor,  but  only  that  it  is 
the  production  of  what  from  the  beginning  was  already 
in  embryo  in  the  popular  genius.  This  doctrine  does  not 
explain  how  the  genius  itself  of  the  people  is  formed, 
containing  in  itself  the  peculiarities  of  each  national  legal 
system.  It  does  not  determine  the  connections  between 
what  is  national  and  what  is  universal.  But  it  is  pre- 
cisely in  the  development  of  law  that  one  observes 
some  common  characteristics  in  spite  of  the  complexity 
of  national  legal  systems.  Legal  development,  in  the 
most  different  peoples,  presents  always  a  certain  uni- 
formity. 

To  give  such  a  narrow  formula  to  the  historic  evolu- 
tion of  law  was  to  explain  law  in  an  incomplete  way. 
The  theory  of  natural  law  reappeared,  but  this  time 
under  a  new  form.  Hegel  and  his  partisans  commenced 
to  oppose  natural  law  not  to  arbitrary  law  (Jus  Volun- 
tarium)  but  to  historic  and  national  law.  At  this  point 
of  view,  natural  law  reappeared  as  the  general  and  im- 
movable base  upon  which  historic  systems  arose  and 
were  regularly  developed.  In  changing  a  little  the  way 
of  putting  the  question,  the  organic  school  sees  in  nat- 
ural law  a  general  unchangeable  ideal  whose  realization 
determines  the  meaning  of  the  historic  development  of 
law.  On  the  other  hand  it  is  necessary  to  admit,  ac- 
cording to  this  school,  that  if  the  lines  of  the  develop- 
ment of  law  are  invariable  and  identical  for  all  human 
societies,  the  results  of  this  development  ought  necessa- 
rily to  present  common  characteristics.  This  resemblance 
in  the  result  of  the  historic  evolution  of  national  sys- 
tems might  be  otherwise  exhibited  as  a  consequence 


THE   CONCEPTION   OF   LAW  121 

of  the  analogy,  or  of  the  uniformity  of  the  principles, 
which  control  the  formation  and  the  evolution  of  each 
system  of  law.  The  latest  theories  of  natural  law 
go  much  farther  and  claim  that  this  law  presents  itself 
not  only  as  the  general  foundation  for  the  historic  de- 
velopment of  law,  but  also  as  its  ideal  end,  prior  to  all 
history.  They  do  not  admit  that  this  general  founda- 
tion which  constitutes  the  subject-matter  of  natural  law 
was  created  by  history,  like  the  special  concrete  elements 
of  law.  According  to  these  latter  theories  natural  law 
was  given  to  us  without  conscious  intervention  of  the 
human  will  and  independently  of  our  activity.  It 
existed  before  any  historic  development,  whose  very 
possibility  depends  upon  its  existence.  Consequently, 
these  theories  do  not  have  merely  the  name  of  theories 
of  natural  law;  they  affirm  the  actual  existence  in  nat- 
ural law  of  a  prehistoric  element  which  has  not  arisen  in 
the  course  of  historic  evolution  and  which  in  this  sense 
is  eternal. 

The  appearance  of  these  theories  after  that  of  the  doc- 
trine of  the  historic  school  is  explained,  as  we  have  al- 
ready said,  by  the  fact  that  the  historic  school  under- 
stood historic  development  in  too  narrow  a  way,  and  de- 
fined it  as  an  organic  development  of  a  type  determined 
beforehand,  and  not  as  a  progressive  and  creative  devel- 
opment. The  connection  of  different  systems  of  law 
with  universal  principles  thus  remained  without  explana- 
tion. The  partisans  of  Hegel  and  the  organic  school 
sought  to  explain  it  by  saying  that  historic  forms  of  law 
are  only  special  manifestations  of  a  sole  and  eternal 
principle  of  law,  and  in  that  way  they  went  back  to  the 
old  theory  of  natural  law.  Nevertheless,  it  is  not  diffi- 
cult to  show  that  the  idea  of  a  regular  evolution,  relieved 
of  the  too  narrow  formula  which  the  historic  school  gave 
to  it  and  expressed  under  the  more  general  one  of  a  pro- 
gressive and  not  simply  an  organic  development,  explains 


122  THEORY   OF  LAW 

with  sufficing  clearness  the  existence  in  law  of  necessary 
and  universal  elements. 

The  inevitable  uniformity  in  natural  phenomena  has 
for  a  result,  that  identical  conditions  produce  always 
identical  consequences.  The  conditions  for  the  existence 
and  development  of  different  human  societies,  various  as 
they  are  in  their  special  elements,  are  nevertheless  en- 
tirely identical  in  certain  general  ones.  Always  and 
everywhere  there  are  found  certain  conditions  of  human 
life  on  earth.  The  actors  and  the  stage  in  the  historical 
development  of  humanity  are  always  the  same.  There 
is  much  more  resemblance  than  difference  among  men. 
The  surface  of  the  earth,  diversified  as  it  is,  remains 
always  a  whole.  This  is  why  human  life  wherever  de- 
veloped presents  universally  the  same  general  leading 
characteristics,  despite  the  difference  in  individual  ones. 
Human  law,  whatever  the  complexity  of  its  contents, 
possesses  inevitably  some  general  qualities.  But  this 
does  not  prove  that  there  is  outside  of  the  historic 
process  a  general  unchangeable  principle  which  marks 
out  the  course  of  legal  development.  The  generality  is 
only  the  result  of  the  action  of  general  conditions,  noth- 
ing more. 

We  cannot  limit  ourselves  on  this  subject  to  these  gen- 
eral remarks.  Given  the  extensive  importance  of  the 
hypothesis  of  natural  law,  and  its  profound  influence 
upon  legislation  and  legal  science,  it  is  necessary  to  ex- 
amine in  greater  detail  the  different  phases  of  its  devel- 
opment. 


THE   CONCEPTION   OF  LAW  123 


Section  15.     The  Natural  Law  of  the  Roman  Jurists 

VOIGT.  Die  Lehre  von  Jus  naturale,  asquum  et  bonum  und 
Jus  gentium  der  Romer.  1856.  B.  I.  s.  267-336. 

LEIST.    Die  realen  Grundlagen  und  die  Stoffe  des  Rechts. 

BOGOLIEPOV.  Importance  of  Private  International  Law.  1876, 
p.  26. 

MOUROMTZEV.  Sketch  of  a  General  Theory  of  Private  Law. 
1877,  p.  241. 

According  to  the  doctrine  of  the  Roman  jurists  natural 
law  is  a  part  of  positive  law.  According  to  them,  the 
positive  law  of  each  country  is  made  up  of  two  essen- 
tially distinct  elements.  Some  rules  are  established  by 
men's  wills  and  can  be  changed  at  their  pleasure;  others 
are  unchangeable,  existing  of  necessity  always  and  every- 
where, because  they  depend  upon  nature  itself.  Natural 
law  is  distinguished  from  positive  law  by  this  necessity, 
unchangeableness  and  independence  of  human  will.  But 
they  recognize  a  positive  law,  also,  as  acting  at  the 
same  time  and  in  the  same  way  as  natural  law.  They 
placed  the  latter  in  the  sphere  of  concrete  phenomena. 
They  attributed  to  its  action  as  genuine  a  force  as  to 
that  of  positive  law. 

Under  this  form  the  hypothesis  of  natural  law  can  be 
subjected  to  a  critical  verification  by  which  it  can  be 
ascertained  whether  it  is  true  that  those  legal  rules  re- 
garded as  natural  are  always  and  everywhere  necessary 
elements  of  positive  law.  If  it  is  established  that  all 
these  legal  rules,  apparently  natural,  depend  upon  con- 
ditions of  time  and  place  and  are  necessary  elements  of 
positive  law,  the  hypothesis  as  set  forward  by  the  Roman 
jurists  must  be  rejected. 

The  Roman  jurists  give  in  their  works  a  good  many 
reasons  tending  to  show  that  legal  rules  do  not  depend 


124  THEORY  OF  LAW 

upon  the  human  will,  but  are  created  by  nature  itself. 
They  attribute  to  them  as  a  basis,  either  human  nature, 
or  the  nature  of  the  things  which  are  the  subjects  of 
rights,  or  the  nature  of  the  legal  relations  themselves. 
So,  basing  them  upon  human  nature,  they  affirm  that  it 
is  necessary  to  admit  that  minors  cannot  undertake  bind- 
ing obligations  and  that  the  institution  of  guardianship 
is  indispensable.  Since  in  its  nature  humanity  remains 
always  the  same,  whether  slave  or  free,  the  Pom- 
peian  law  which  punishes  the  murder  of  parents  and 
patrons  and  which  in  its  strict  meaning  applies  only 
to  free  men,  ought  to  be  applied  also  to  slaves.  In 
its  own  nature  humanity  cannot  be  likened  to  a  fruit. 
Hence  a  slave's  infant  born  at  the  time  when  its  mother 
was  under  the  control  of  a  master,  who  had  in  her  only 
a  "usufruct,"  ought,  notwithstanding  the  general  rule, 
to  be  restored  with  the  mother  to  her  general  owner. 
(Ulpianus.  Vetus  fuit  qu&stio  an  partus  ad  fructuarium 
pertinet,  sed  Bruti  sententia  obtinuit;  fructuarium  in  eo 
loco  non  habere;  ne  que  enim  in  fructu  hominis  homo  esse 
potest,  hoc  ratione  nee  usumfructum  in  eo  fructuarius 
habebit.) 

In  his  own  nature  man  can  be  instructed  indefinitely; 
then,  if  in  a  will  mention  is  made  of  slaves  who  have 
learned  the  art  of  hair  dressing,  it  must  be  held  to 
include  those  who  have  studied  this  calling  only  two 
months.  (Martianus.  Ornatricibus  legatis,  Celsus  scrip- 
sit,  eos  qua  duos  tantum  menses  apud  magistrum  fuerint. 
legato  non  cedere;  alii  et  has  cedere;  ne  necesse  sit,  nullam 
cedere,  quum  omnes  ad  hue  discere  possint  et  omne  arti- 
ficium  incrementum  recipiat.  Quod  magis  obtinere  debet, 
quia  humane  natures  congruum  est.) 

The  Roman  jurist  deduced  another  category  of  legal 
norms  from  the  nature  of  things.  "Perhaps  someone 
will  ask,"  saidt  the  jurist  Paul,  "why  by  silver  we  mean 
also  things  made  of  silver,  while  by  marble  we  mean 


THE   CONCEPTION   OP  LAW  125 

only  the  mere  material."  This  rule  rests  upon  the  fol- 
lowing proposition:  all  which  from  its  own  nature  can 
be  several  times  transformed  without  losing  identity, 
because  of  such  a  power  in  the  material,  is  regarded 
as  never  subject  to  such  action.  (Illud  fortasse  quceritu- 
rus  sit  aliquis,  cur  argenti  appelatione  etiam  factum 
argentum  comprehendatur,  quum  si  marmor  legatum  esset, 
nihil  pr&ter  rudem  materiam  demonstratum  videri 
posset.  Cujus  h&c  ratio  traditur,  quippe  ea,  qua 
talis  natures  sint,  ut  s&pius  in  sua  redigi  possint 
initia,  ea  materice  potentia  victa,  nunquam  vires  ejus 
ejffugiant.) 

All  the  world,  according  to  natural  law,  can  but  make 
use  of  the  sea,  of  running  water,  and  the  air.  (Martianus. 
Et  quidem  naturali  jure  omnium  communia  sunt  ilia: 
aer,  aqua  profluens  et  mare.)  Gaius  thinks  that  natural 
reason  requires  that  a  contiguous  wall  be  the  common 
property  of  the  neighbors.  When  certain  things  by  their 
very  nature  are  consumed  in  use,  they  may  not  be  made 
subjects  of  "usufruct."  (Rebus  exceptis  his  qui  ipso  usu 
consumuntur:  nam  e<z  neque  naturali  ratione  neque  civili 
recipiunt  usumfructum.) 

Finally,  the  nature  of  the  relations  themselves  can  be 
also  considered  as  a  source  of  legal  institutions.  The 
Sabinian  School,  starting  with  the  notion  that  the  law  of 
property  is  the  most  absolute  part  of  law  and  least  sub- 
ject to  arbitrary  adjustment,  affirmed  that,  according  to 
natural  reason,  in  a  case  of  specification,  the  right  of 
property  over  a  thing  must  always  remain  in  its  owner. 
It  is  contrary  to  nature  that  one  man  should  possess 
the  same  object  as  another.  (Paul.  Contra  naturam 
est,  ut,  cum  ego  aliquid  teneam  tu  quoque  id  tenere 
videaris  .  .  .  non  magis  enim  eadem  possessio  apud  duos 
esse  potesi,  quam  ut  stare  videaris  in  loco  eo,  in  quo  ego  sto, 
vel  in  quo  ego  sedeo  tu  sedere  videaris.)  Conformably  to 
nature  relations  cease  to  exist  in  the  same  way  that  they 


126  THEORY  OF  LAW 

are  created.     (Ulpianus.    Nihil  tarn  naturale,  est,  quam 
eo  genere  quidquam  dissohere  quo  colligatum  est.) 

If,  then,  an  exchange  provided  for  by  a  contract  is  im- 
possible, the  agreement  itself  becomes  so.  It  is  a  deter- 
mination required  by  natural  law.  (Si  id  quo  dari  stipu- 
lemur,  tale  sit,  ut  dari  non  possit,  palam  est  naturali  ratione 
inutilem  esse  stipulationem.) 

The  examples  just  cited  differ  decidedly  from  each 
other.  First,  Several  of  them  have  no  connection  with 
"nature"  and  are  only  necessary  consequences  of  ex- 
periences and  ideas  historically  established.  The  expla- 
nation, for  example,  given  by  Paul  of  the  difference 
between  the  expressions  "silver"  and  "marble,"  rests  en- 
tirely on  the  way  in  which  the  Romans  understood  these 
words.  With  us  the  meaning  which  they  gave  them 
would  have  no  force;  because  sculptors  call  with  us  "mar- 
ble," not  only  the  block  of  marble  but  also  objects  cut 
from  this  material,  just  as  they  call  "bronze,"  a  work  in 
bronze,  and  "canvas,"  the  picture  painted  upon  canvas. 
So  the  rule,  according  to  which  things  consumed  by  their 
use  cannot  be  subjects  of  "usufruct,"  or  of  lease,  is  a 
logical  consequence  of  certain  exclusively  Roman  notions 
which  are  absolutely  conventional.  In  the  Russian  lan- 
guage there  are  no  corresponding  expressions. 

Second,  Another  group  of  the  examples  is  formed 
where  the  term  "nature"  is  taken  in  a  moral  sense,  as 
for  example,  where  it  is  recognized  as  contrary  to  nature 
for  a  man  to  be  assimilated  to  a  fruit.  It  is  certainly 
contrary  to  man's  nature  that  he  be  considered  as  the 
fruit  of  anything.  It  is  also  quite  as  contrary  to  his 
nature  to  consider  him  in  any  way  as  a  "thing."  Not- 
withstanding this,  in  Roman  law,  itself,  slaves  were 
counted  as  things. 

And  lastly,  third,  Among  the  cited  examples,  some  in 
truth  have  a  connection  with  objective  natural  condi- 
tions; but  this  does  not  mean  that  they  contain  legal 


THE  CONCEPTION   OF  LAW  127 

rules  established  by  nature.  In  this  class  of  ideas  are  all 
cases  where  a  limit,  fixed  by  the  conditions  of  physical 
possibility,  is  regarded  as  a  legal  rule.  Thus,  it  is  impos- 
sible to  take  the  air  into  one's  exclusive  possession. 
This  element,  therefore,  cannot  be  a  subject  of  owner- 
ship. This  indicates  only  that  our  actions  are  limited  by 
natural  laws;  that  we  cannot  do  that  which  is  physically 
impossible.  But  this  limit  is  set  by  the  physical  nature 
of  matter,  and  is  no  legal  rule.  It  determines  no  legal 
obligation.  To  the  same  order  of  ideas  belong,  also,  a 
good  many  examples  in  which  legal  rules,  which  are  es- 
tablished by  human  will,  are  regarded  as  natural  ones 
but  only  in  connection  with  some  natural  distinction 
among  men  or  things.  These  are  precisely  the  legal 
rules  most  commonly  recognized  as  those  of  natural  law. 
In  fact,  what  is  due  here  to  "nature,"  is  the  distinction 
between  the  qualities  of  the  man  or  of  the  things,  a  dis- 
tinction which  causes  a  variation  in  human  interests, 
from  which  results  a  necessity  for  using  special  rules  for 
their  delimitation.  These  rules  are  established  not  by 
nature  but  by  man,  and  are,  consequently,  not  always 
and  everywhere  the  same. 

Such,  for  example,  is  the  legal  distinction  among  men 
according  to  their  age.  The  distinctions  are  certainly 
natural,  and  exist  independently  of  any  legislator's  will. 
But  the  fact  of  our  attributing  to  them  legal  importance 
is  neither  universal  nor  necessary.  On  the  contrary,  it 
results  from  history,  existing  at  one  place,  and  one 
epoch,  and  not  existing  under  other  conditions.  For 
example,  in  Russia  and  France,  infants  under  ten  years 
old  cannot  for  lack  of  discretion  be  subjected  to  legal 
penalties.  But  in  Russia  there  is  a  formal  law  according 
to  which  no  criminal  prosecution  can  be  commenced 
against  children  under  ten,  while  in  France  there  is  no 
such  rule. 
Nevertheless,  there  have  been  cases  of  prosecution  in, 


128  THEORY  OF  LAW 

this  country  of  children  of  three  and  five  years.  This 
proves  that  if  the  distinction  according  to  age  is  really  a 
natural  one,  it  nevertheless  has  in  itself  no  legal  effect. 
This  effect  can  be  given  it  only  by  a  law,  and  such  a  law 
may  not  exist. 

It  is  the  same  with  the  legal  distinction  between  per- 
sonal and  real  property.  As  a  natural  fact,  this  distinc- 
tion always  exists,  but  a  legal  effect  to  it  can  be  given 
only  under  historic  conditions  which  are  quite  variable. 
In  modern  law,  and  generally  in  that  of  the  middle  ages, 
it  has  great  legal  importance,  for  from  it  result  numerous 
consequences  in  regard  to  the  means  of  acquiring  and  of 
protecting  such  property  afforded  by  law,  especially  in 
the  matter  of  succession.  But  in  the  Roman  law,  for 
example,  it  had  very  little  weight.  In  distinguishing  res 
mancipi  and  res  nee  mancipi  the  distinction  between 
movables  and  immovables  was  not  observed. 

To  sum  up,  we  are  unable  to  recognize  in  these  exam- 
ples any  necessary  natural  rules.  They  are  all  variable, 
and  established  historically  by  positive  law. 


THE  CONCEPTION   OF    LAW  129 


Section  16.     The  New  Theories  of  Natural  Law 

LASSON.    System  der  Rechtsphilosophie,  1882. 

STAHL.    Die  Philosophic  des  Rechts,  4  Aufl.,  1870.    B.  I. 

The  school  of  natural  law,  which  appeared  in  the  XVII 
century,  considered  it  not  as  an  integral  part  of  positive 
law,  but  as  an  unchangeable  independent  law  existing  by 
the  side  of  the  positive.  In  determining  the  value  of  this 
idea,  we  cannot  use  the  process  which  served  for  refuting 
the  Roman  doctrine  as  to  natural  law.  If  we  oppose 
natural  to  positive  law  there  is  no  longer  need  to  show 
in  this  last  the  existence  of  elements  of  natural  law. 
Consequently,  the  complete  absence  in  positive  law  of 
absolute  and  unchangeable  principles  can  no  longer  serve 
us  as  an  argument  against  the  correctness  of  the  doctrine 
we  are  setting  forth.  Positive  law  can  be  variable  and 
heterogeneous,  if  above  it  rises  always  the  eternal  law 
of  nature.  To  refute  this  theory  no  longer  requires, 
merely,  insistence  upon  the  variety  and  divergence  of 
fundamental  principles.  It  is  impossible  to  say  that  if 
natural  law  really  existed  there  would  be  no  question  as 
to  the  nature  of  its  fundamental  principle.  The  move- 
ments of  the  heavenly  bodies  are  fixed  by  an  unchange- 
able law,  but  how  many  different  opinions  arose  as  to 
them  before  mankind  succeeded  in  understanding  the 
law! 

For  the  refutation  of  the  natural  law  doctrines  of  mod- 
ern times,  other  means  must  be  employed  and  other  aids 
depended  on.  It  is,  before  all,  a  hypothesis  and,  at  the 
same  time,  one  founded  upon  the  supposed  existence  of 
a  factor  whose  reality  is  exhibited  by  no  empirical  dem- 
onstration. Similar  hypotheses  exist  in  the  natural  sci- 
ences; for  example,  that  of  ether;  but  these  hypotheses, 
although  they  cannot  be  directly  verified  by  experi- 


130  THEORY  OF  LAW 

ment,  nevertheless  must  not  contradict  the  results  of 
experience,  or  lead  to  consequences  not  in  harmony  with 
its  results.  It  is  only  on  such  condition  that  an  hypoth- 
esis can  be  scientific  in  character.  This  is  why,  if  the 
new  doctrine  of  natural  law  leads  invariably  to  the 
negation  of  positive  law,  whose  existence  is  an  undoubted 
fact,  it  must  be  regarded  as  false.  There  is  no  difficulty 
in  showing  that  this  doctrine,  so  far  as  it  is  a  system 
of  special  absolute  rules,  leads  in  truth  to  this  con- 
clusion. 

The  theories  of  the  XVII  and  XVIII  centuries  saw  in 
natural  law  a  complete  system  of  juridical  norms.  All 
the  relations  of  man  without  exception  can  in  their  view 
be  regulated  by  the  principles  of  natural  law.  But  how 
is  it  possible  that  there  exists,  in  addition,  by  its 
side  a  positive  law?  How  can  this  latter  arise  if  there 
has  long  been  a  system  of  natural  juridical  norms,  suffi- 
cient by  themselves?  Natural  law  is  a  collection  of 
rules  dictated  by  reason  and  in  conformity  with  nature. 
It  contains,  they  say,  in  itself  the  absolute,  unchange- 
able, principles  of  justice.  Consequently,  every  institu- 
tion of  positive  law  which  contradicts  natural  law  neces- 
sarily violates  the  eternal  and  absolute  principles  of 
right  and  justice.  Why,  then,  despite  this,  call 
these  principles,  which  contradict  right  and  justice,  law? 
If  in  the  natural  we  have  an  absolute  test  of  what  is 
law  and  what  is  not,  how  can  we  bring  under 
the  conception  of  law  all  the  institutions  of  the  positive 
law? 

To  say  the  truth,  the  early  authors  of  the  school  of 
natural  law  sought  to  reconcile  the  fact  of  the  existence 
of  positive  law  with  the  supposition  of  the  natural  law, 
but  they  only  reached  such  reconciliation  by  contradict- 
ing themselves.  According  to  the  doctrines  of  Grotius, 
and  the  representatives  of  the  rationalist  tendency  in 
the  school  of  natural  law  (Puffendorf,  Thomasius,  Leib- 


THE   CONCEPTION   OF   LAW  131 

nitz,  Wolfe),  natural  law  is  inborn  in  man,  and  is  that 
upon  which  positive  law  is  based.  Thus,  for  them,  the 
obligatory  observance  of  contracts  is  one  of  the  rules 
prescribed  by  natural  law.  Consequently,  if  men  agree 
to  set  up  a  political  power  with  a  view  to  establish  order 
in  society,  and  give  to  it  the  right  to  make  laws,  these 
laws  are  obligatory  upon  everybody.  But  these  con- 
tracts, these  rules,  can  they  contradict  the  requirements 
of  natural  law,  or  on  the  contrary,  have  they  force  only 
so  far  as  they  conform  to  its  principles?  If  we  admit 
that  positive  law,  to  be  obligatory,  must  not  contradict 
natural  law,  the  extreme  diversity  of  positive  legal  rules 
is  not  explainable.  If  we  examine  simultaneously  several 
contradictory  institutions  of  positive  law,  only  one  among 
them  can  conform  to  natural  law;  all  the  others  must 
contradict  it.  But  if  we  admit  that  the  institutions  of 
positive  law  based  upon  contract  are  obligatory  even  if 
they  contradict  the  principles  of  natural  law,  this  does 
not  harmonize  with  the  rigorously  obligatory  character 
of  the  latter.  Natural  law  is  eternal  and  unchangeable, 
not  only  by  man,  but  by  God  himself,  as  Grotius  affirms. 
How,  then,  can  man  replace  its  laws  by  others  in  con- 
tradiction with  it?  Rousseau,  infinitely  more  logical, 
derives  the  inalienability  of  natural  rights  from  the  free- 
dom, innate  and  absolute,  of  natural  law.  But  in  re- 
venge, Rousseau  comes  thus  to  a  denial  of  the  obligatory 
character  of  positive  law,  that  is  to  say,  to  contesting  an 
absolute  fact  in  order  to  justify  the  hypothesis  he 
adopts. 

The  representatives  of  the  empirical  tendency  (Hobbes, 
Locke,  Hume)  have  sought  another  explanation.  They 
do  not  admit  that  the  natural  law  is  innate.  There  is 
such  a  law,  but  we  must  learn  it  by  experience.  The 
variety  and  diversity  of  positive  law  systems  comes  from 
the  imperfection  of  human  knowledge.  If  natural  law 
were  fully  known,  it  alone  would  govern  men's  mutual 


132  THEORY    OF    LAW 

relations.  Further,  if  natural  law  is  the  only  one 
in  conformity  with  nature,  then  positive  law  is  con- 
trary to  nature.  How,  then,  can  it  exist?  Is  that 
which  is  contrary  to  nature  possible?  The  representa- 
tives of  the  empirical  tendency  cannot  affirm  such  a 
proposition,  especially  as  they  do  not  admit  the  dualism 
which  opposes  spirit  to  matter  and  since  they  subject 
psychical  phenomena  to  the  law  of  causality.  If  our 
psychical  life  is  subject  to  the  law  of  causality  there 
can  be  nothing  in  it  contrary  to  nature.  On  this  sup- 
position there  cannot  exist  rules  which  are  not  in  har- 
mony with  nature.  Consequently,  the  variable  norms 
of  positive  law  are  also  in  harmony  with  nature,  and  in 
this  sense  natural.  We  cannot  oppose  to  them  the  fa- 
mous " natural  law"  as  the  only  one  in  harmony  with 
nature. 

In  the  XIX  century,  in  place  of  the  doctrine  of  the 
school  of  natural  law,  appeared  a  theory  which  under- 
stands natural  law  as  an  eternal  idea  manifesting  itself  in 
the  historic  development  of  positive  law.  Such  is  the 
opinion  of  Hegel  and  his  school.  But  this  new  way  of 
understanding  natural  law  leads  in  reality  to  its  nega- 
tion. In  fact,  the  idea  which  serves  as  a  basis  for  his- 
toric development  cannot  be  a  law  practicably  applicable 
and  capable  of  regulating  the  legal  relations  of  men. 
This  idea  determines  the  development  of  law  but  not  the 
rights  of  man.  In  thus  understanding  natural  law  the 
coexistence  of  the  two,  natural  and  positive  law,  is  not 
admitted.  Hegel  recognized  only  positive  law,  but  sees 
in  it  a  manifestation  of  the  absolute  idea  of  law.  The 
pre-existence  of  the  absolute  idea  of  law,  before  its  his- 
toric development,  does  not  agree  with  historic  facts;  if 
the  historic  development  took  place  in  this  fashion  there 
would  be  found  in  the  law  in  all  the  phases  of  its  devel- 
opment, common  and  identical  characteristics;  but  we 
can  only  establish  such  common  characteristics  by 


THE   CONCEPTION   OF   LAW  133 

comparing     corresponding     stages     of     legal     develop- 
ment. 

This  proves  that  the  common  characteristics  in  the  law 
do  not  precede  its  historic  development,  but  are  products 
of  its  history. 


134  THEORY  OF  LAW 


Section  17.    General  Criticisms  of  the  Natural  Law  Idea 

We  have  examined  the  principal  forms  which  the  nat- 
ural law  hypothesis  has  taken  in  the  course  of  its  devel- 
opment and  have  criticised  each  of  them,  but  natural  law 
does  not  give  birth  merely  to  scientific  hypothesis.  It  is 
not  mere  scientific  theory,  unconnected  with  practical 
life.  On  the  contrary,  the  idea  of  natural  law  has  played 
a  very  important  r61e  in  practical  life  as  well  as  in  the 
scientific  theory  of  law.  For  many  persons  it  is  not  a 
mere  supposition,  but  a  fervent  belief.  Its  existence  has 
been  deemed  self-evident  and  necessary.  How  shall  we 
explain  the  origin  of  this  idea  of  natural  law  and  its  in- 
fluence? 

The  appearance  of  the  idea  is  explained  by  the  follow- 
ing fact.  Our  conceptions  are  not  produced  solely  by  the 
generalization  of  notions  derived  from  experience,  but 
also  by  the  contrast,  or  opposition  to  these  notions  which 
they  generate  in  the  mind.  We  can  directly  observe  only 
what  is  conditional,  limited,  temporal,  only  what  exists. 
But  by  the  aid  of  direct  contrast  with  these  immediate 
results  of  experience  we  form  notions  of  the  absolute,  the 
unlimited,  and  the  eternal,  and  even  reach  the  concep- 
tion of  the  non-existent.  So,  recognizing  by  direct  ob- 
servation a  variable,  complex  and  conditional  positive 
law,  we  form  in  our  minds,  by  an  antithesis  such  as  has 
been  mentioned,  the  notion  of  a  single,  unchangeable,  ab- 
solute law. 

In  this  way  is  the  appearance  of  the  conception  of 
natural  law  explained;  but  how  does  the  conviction  arise 
that  there  is  an  actual  law  corresponding  to  this  con- 
ception? 

We  constantly  meet  with  such  a  conviction,  the  cause 
of  which  is  in  the  a  priori  errors  to  which  the  human 


THE   CONCEPTION   OF  LAW  135 

mind  is  subject.  "Mankind,"  says  Mill,  "in  all  ages 
have  had  a  strong  propensity  to  conclude  that  wherever 
there  is  a  name  there  must  be  a  distinct  separate  entity 
corresponding  to  the  name,  and  every  complex  idea 
which  the  mind  has  formed  for  itself  by  operating  upon 
its  conceptions  of  individual  things  was  considered  to 
have  an  outward  objective  reality  answering  to  it."  l 

This  tendency  to  attribute  reality  to  all  our  concep- 
tions is  found  not  only  in  the  ordinary  judgments  of 
men,  it  serves  as  the  basis  for  philosophic  systems.  This 
error  was  at  the  base  of  the  platonic  doctrine  of  ideas, 
and  is  the  basis  of  mediasval  realism  which  began  with 
Scotus'  teaching.  On  this  error  rests,  still,  the  anti-Kan- 
tian or  dogmatic  rationalism.  The  time  when  dogmatic 
rationalism  had  a  predominating  influence  was  precisely 
that  of  the  greatest  development  of  the  natural  law  hy- 
pothesis. 

Thus,  the  notion  of  natural  law  springs  from  the  sim- 
ple antithesis  to  variable  law  which  we  recognize  in 
our  experience,  and  from  the  tendency  of  the  mind  to 
attribute  external  reality  to  all  our  notions.  It  still 
remains  to  explain  how  certain  principles  of  positive 
law,  in  reality  variable,  have  been  taken  for  immutable 
principles  of  natural  law.  Here  again  the  judgment 
was  deceived  by  a  priori  error,  but  of  a  little  different 
kind. 

Men  in  general  are  inclined  to  regard  the  habitual  and 
the  simple  as  identical  with  the  necessary,  and  the  nat- 
ural. Almost  always  the  quite  simple  and  the  familiar 
seem  to  us  necessary.  Thus,  Lactantius  thought  he 
found  an  argument  against  the  doctrine  of  the  earth's 
spherical  form  in  the  impossibility  of  imagining  antip- 
odes, where  it  would  be  necessary,  to  use  his  expression, 
that  one's  feet  be  higher  than  his  head.  Today  no  one 
finds  any  difficulty  in  imagining  antipodes.  His  trouble 

1  Logic,  Book  5.     Chapter  3,  Par.  4. 


136  THEORY  OF  LAW 

was  because  his  mind  was  not  accustomed  to  this  idea. 
Aristotle  thought  a  descending  motion  in  liquids  and  sol- 
ids was  the  most  natural,  and  that  ascending  motion  was 
an  artificial  one,  produced  by  force;  and,  consequently, 
he  thought  the  first  had  an  increasing,  and  the  latter  a 
decreasing,  rate  of  speed.  Modern  mechanics  regard  both 
alike  as  equally  natural.  Every  one  is  surprised  to  ob- 
serve the  Roman  jurist  affirming  in  the  Pandects  that  the 
adulterer  is  blameworthy  only  from  the  point  of  view  of 
natural  law;  but  that  the  violation  of  the  trust  of  guar- 
dianship is  condemned  because  of  custom;  that  poisons 
cannot  be  used  as  remedies,  and  cannot,  because  of  their 
nature,  be  objects  of  commerce. 

The  influence  of  custom  is  insufficient  to  explain  by 
itself  all  cases  wherein  juridical  rules  appear  to  us  as  nat- 
ural, for  there  have  been  some  principles  regarded  as 
natural  which  are  not  more  frequently  applied  in  the 
law  than  others  and  have  no  general  legal  force.  Thus, 
for  the  Roman  jurists  it  seemed  natural  that  a  legal 
relation  be  ended  by  the  same  procedure  by  which  it 
was  established.  This  correlation  between  formation  and 
extinction  of  the  legal  rule  had  not  in  Roman  law  the 
force  of  a  general  rule.  In  our  day  equality  is  announced 
as  a  rule  of  natural  justice.  Meanwhile,  it  is  only  in 
modern  life  that  the  inequality  is  disappearing  which 
has  heretofore  prevailed.  So,  several  representatives 
of  the  school  of  natural  law  have  made  unrestricted 
liberty  the  basis  of  it,  but  such  liberty  has  never  found 
an  effective  realization.  To  explain  the  origin  of  this 
kind  of  doctrines  it  is  necessary  again  to  take  into  con- 
sideration our  tendency  to  prefer  in  everything  the 
simple  to  the  complex.  What  the  mind  grasps  most 
easily,  thanks  to  its  simplicity,  we  are  inclined  to  con- 
sider as  most  regular  and  truth-like  or  even  as  an  indis- 
putable proposition.  Thus,  for  a  great  while,  the  orbits 
of  the  heavenly  bodies  were  supposed  to  be  circles 


THE   CONCEPTION   OF   LAW  137 

because  it  was  thought  the  circle  represents  the  most 
perfect  line.  In  the  same  way,  the  proposition  that 
nature  acts  always  by  the  simplest  means,  was  recog- 
nized as  an  axiom.  The  same  reasons  explain  the  widely 
received  opinion  which  attributes  a  natural  character 
to  the  simplest  legal  forms  and  principles. 

All  these  explanations  as  to  the  origin  of  the  belief 
in  the  natural  character  of  different  principles  of  law, 
despite  their  apparent  difference,  are  based  upon  and 
lead  back  to  the  common  one  of  a  priori  errors.  In 
other  words,  the  belief  in  natural  law  owes  its  origin  to 
the  logical  error  of  wrongly  recognizing  as  evident  and 
necessary,  institutions  which  in  fact  are  not  so. 

But  how  comes  it  that  this  error  has  played  so  con- 
siderable a  r61e  in  human  history  and  has  been  in  the 
past  a  factor  of  progress?  To  understand  this  phe- 
nomenon it  is  necessary  to  recall  the  fact  that  the  idea 
of  progress  is  a  recent  one,  and  dates  only  from  the 
XVIII  century.  Till  then,  the  golden  age  was  regarded 
not  as  in  the  future  but  in  the  past.  All  change  was 
thought  to  remove  man  farther  and  farther  from  the 
happy  past,  and  to  bring  with  it  increase  of  evil.  A 
prudent  statesman  could  have  only  one  ambition,  that 
of  keeping  society  in  statu  quo.  There  could  be  no 
question  of  improvement.  The  golden  age  was  gone 
beyond  return.  The  only  thing  possible  was  not  to 
remove  it  too  far.  When  this  general  idea  prevailed, 
new  ideas  and  new  principles  could  have  no  success. 
The  new,  because  of  its  novelty,  appeared  dangerous; 
to  be  received  it  must  take  on  an  appearance  of 
antiquity.  But  what  could  present  itself  with  such  a 
genuine  seal  of  the  antiquity  of  the  remote  past  as  that 
nature  which  existed  always  even  when  the  oldest  cus- 
toms were  forming  ? 

The  natural  law,  then,  was  the  oldest  part  of  law  that 
belonged  to  the  remotest  past.  It  appeared  with  the 


138  THEORY  OF  LAW 

first  man,  and  preceded  all  other  law.  It  was  sufficient, 
then,  to  present  a  new  idea  as  a  principle  of  natural 
law  to  get  it  received.  This  gave  it  all  the  prestige  of 
antiquity  which  belongs  to  the  most  archaic  positive  law. 
In  this  way  the  Roman  jurists  took  up  the  moral  doc- 
trines of  the  stoics  in  proposing  them  as  a  manifestation 
of  natural  law  taught  men  by  nature  itself.  So,  in  the 
XVIII  century  the  new  principles  of  liberty  were  opposed 
to  the  law  of  the  middle  ages,  whose  force  was  ex- 
hausted, as  new  principles  of  natural  law,  eternal  and 
unchangeable. 


CHAPTER  IV 

ORIGIN  OF  LAW 

Section  18.     Theory  of  the  Arbitrary  Formation  of  Law 

MOUROMTZEV.  The  Formation  of  Law  as  conceived  in  Ger- 
man Legal  Science,  1886. 

If  the  hypothesis  of  natural  law  ought  to  be  rejected 
in  its  entirety,  if  the  whole  law  ought  to  be  considered 
as  a  product  of  historic  development,  the  question  as 
to  its  origin  acquires  a  special  importance.  In  admitting 
the  existence  of  natural  law,  we  are  compelled  to  hold 
that  law  is  innate  in  man.  On  this  supposition  men  in 
creating  variable  institutions  of  positive  law,  start  with 
the  notion  of  a  ready-made  natural  law  which  they  find 
in  the  minds  of  their  fellow  men.  But  if  we  do  not 
admit  the  existence  of  natural  law,  we  must  recognize 
that  there  has  been  a  time  when  human  consciousness  con- 
tained no  notion  of  law.  How,  then,  could  it  make  its  ap- 
pearance and  how  could  a  conception  of  law  take  its  rise? 
It  would  appear  somewhat  difficult  to  settle  this 
question.  In  all  legal  literature  there  has  not  been  up 
to  the  present  time  any  one  received  explanation  of  the 
genesis  of  law. 

Before  the  historic  school,  law  was  presented  in  all  its 
parts  as  an  institution  formed  by  man.  It  was  looked 
upon  as  something  men  had  fashioned  for  their  own 
convenience.  At  first  sight  this  explanation  may  seem 
the  simplest,  but  if  we  look  at  the  matter  carefully,  there 
is  no  difficulty  in  recognizing  that  it  has  no  value. 
This  explanation  may  have,  and  has  in  fact  had,  two 
different  forms.  The  origin  of  law  can  be  connected 
either  with  an  order  from  the  state  or  with  contract. 

139 


140  THEORY   OF   LAW 

The  doctrine,  which  sees  the  origin  ot  law  in  an  order 
from  the  government,  rests  upon  the  fact  that  law 
established  by  the  political  power  of  the  state  forms  the 
principal  part  of  law  in  modern  life.  The  conclusion 
has  been  drawn  from  this  that  it  has  always  been  so, 
and  that  law  owes  its  origin  to  governmental  authority. 
To  this  are  to  be  added  some  psychological  considera- 
tions. It  is  claimed  that  force  and  power  inspire  an 
instinctive  fear  in  men,  and  that  they  are  always  inclined 
to  attribute  an  eminently  obligatory  character  to  that 
which  the  state  ordains.  There  is  certainly  something 
of  truth  in  this  assertion.  The  fear  of  authority,  and 
its  prestige,  certainly  play  a  great  role  in  the  formation 
of  law.  But  this  is  not  sufficient  to  explain  its  origin. 
Respect  for  authority  brings  men  to  obedience,  but 
obedience  is  not  law.  Obedience  may  take  different 
forms,  and  that  which  depends  upon  the  sentiment  of 
law  presupposes  that  one  recognizes  in  the  government 
the  right  to  establish  legal  rules,  otherwise  this  obedi- 
ence would  have  no  juridical  character.  One  would 
obey  from  fear,  blindly,  instinctively,  unconsciously. 
Besides,  law  was  primitively  regarded  as  something 
necessary  and  independent  of  human  will.  It  was 
attributed  to  a  divine  author  and  in  general  assigned  to 
celestial  origin.  According  to  this,  the  contents  of  legal 
rules  were  not  dependent  on  the  wills  of  men.  Men 
ought  to  find  the  substance  of  these  rules  all  prepared 
and  ready-made  without  the  action  of  their  own  will  or 
consciousness.  But  by  whom  was  this  matter  fur- 
nished? Evidently  the  theory  which  explains  the  origin 
of  law,  by  the  state's  order,  can  give  no  satisfactory 
answer  to  this  question.  The  authority  of  the  hypoth- 
esis we  are  discussing,  having  existed  only  in  men's 
imagination,  cannot  be  the  real  source  of  legal  rules. 
But  even  in  cases  where  the  governing  will  is  an  actual 
will  of  men,  there  rises  a  new  question.  How  comes  it 


THE   CONCEPTION   OF  LAW  141 

that  other  men  recognize  in  these  persons  the  right  to 
establish  obligatory  rules  for  the  whole  society?  The 
establishment  of  the  earliest  obligatory  rules  must  be 
preceded  by  recognition  of  a  certain  right  in  the  govern- 
ment. Moreover,  even  in  despotic  states  we  never  see 
arbitrary  power  raised  to  the  height  of  a  principle. 
Even  the  despot  is  regarded  as  acting  according  to  the 
requirements  of  justice.  His  actions  may  be  regarded 
as  unjust.  If  this  is  so,  the  standard  of  justice  is  not 
in  his  sole  will. 

Another  opinion,  also  inspired  by  the  theory  which 
makes  the  conscious  and  creative  will  of  man  the  author 
of  law,  connects  itself  with  the  theory  of  contract.  It  is 
asserted  that  law  was  originally  established  by  agree- 
ment between  all  the  members  of  the  given  society.  Here 
we  are  led  to  observe  again,  that  from  the  existing  state  of 
things  conclusions  are  drawn  as  to  the  conditions  of 
the  original  formation  of  law.  In  our  actual  society 
the  rules  which  control  the  present  relations  of  man  are 
often  established  by  contract.  But  for  such  a  creation 
of  legal  rules  to  be  possible,  we  must  admit  the  obligatory 
character  of  contract;  but  this  is  not  a  self-evident 
axiom.  The  obligatory  force  of  contract,  on  the  con- 
trary, is  a  legal  principle  historically  elaborated,  and  by 
no  means  considered  to  be  the  general  rule.  In  modern 
law  the  obligatory  character  of  contracts  is  generally 
recognized,  but  not  without  exception.  Agreements 
touching  very  slight  interests  and  immoral  agreements 
have  no  obligatory  force.  It  was  not,  then,  the  agree- 
ment which  made  the  obligation,  but  its  particular 
form.  Without  the  latter  it  had  no  force.  It  was  in 
this  way  that  the  obligatory  character  of  contracts 
actually  came  about.  This  is  why  if  we  attempt  to 
explain  the  origin  of  law  by  contract  we  fall  into  a 
vicious  circle.  It  is  to  say  that  the  origin  of  legal  rules 
is  in  contract,  and  then  admit  that  the  obligatory  force 


142  THEORY  OP  LAW 

of  contract  results  from  a  legal  rule  established  only  in 
the  course  of  history.  But  this  legal  rule  sanctifying 
contract,  is  it,  too,  founded  on  contract?  An  affirma- 
tive response  leads  to  an  absurdity  and  a  negative  one 
shows  the  impossibility  of  explaining  the  origin  by  a 
contract. 

It  is  quite  as  impossible  to  explain  by  a  contract  the 
origin  of  law  as  it  is  that  of  language.  When  language 
exists,  we  can  by  agreement  introduce  new  words  into 
use,  as,  for  example,  new  technical  terms  are  brought  in. 
But  it  is  impossible  to  explain  in  this  way  the  first 
origin  of  the  language,  for  if  it  did  not  exist  it  could 
not  thus  be  extended.  The  institution  of  legal  rules  by 
contract  presupposes,  therefore,  the  existence  of  a  law 
as  a  necessary  basis  upon  which  to  rest  the  validity  of 
the  contract. 


THE  CONCEPTION  OP  LAW  143 


Section  19.     The  Doctrine  of  the  Historical  School 

LABOULAYE.  Essai  sur  la  vie  et  les  doctrines  de  F.  C.  de 
Savigny,  1842. 

LENTZ.  Ueber  geschichtliche  Entstehung  des  Rechts, 
1854. 

The  question  of  the  origin  of  law  was  treated  in  a 
more  detailed  and  scientific  way  by  the  historic  school. 
Before  this  school,  the  search  for  rational  principles  of 
law  absorbed  the  efforts  of  the  learned.  The  historical 
school  placed  the  question  of  the  origin  of  law  upon 
different  ground.  They  placed  it  upon  the  plane  of 
positive  law;  they  thought  it  impossible  to  derive  a 
theory  of  law  from  speculative  efforts  of  human  reason, 
and  proposed  to  turn  scientific  effort  towards  the  study 
of  historic  reality.  Consequently,  it  became  necessary 
to  ask  the  question,  not  "what  is  law?"  but  "how  came 
it  to  be?" 

The  founder  of  the  historic  school,  Gustave  Hugo 
(1768-1844),  formulated  the  question  in  these  terms. 
His  Lehrbuch  des  Naturrechts  als  einer  Philosophic 
des  positiven  Rechts,  1809,  consists  of  two  parts.  The 
first  studies  man,  regarding  him  as  an  animal,  as  a 
reasonable  being,  and  as  a  member  of  the  state.  In  the 
second  he  sets  forth  the  principles  of  civil  and  public 
law.  In  this  second  part  he  begins  by  examining  how 
law  is  formed.  He  assails .  the  opinion,  then  current, 
that  it  is  simply  a  result  of  legislation.  His  paragraph 
130,  though  quite  short,  contains  the  germs  of  the  his- 
toric school's  doctrine.  He  shows  that  law  is  formed 
outside  of  legislation,  that  in  all  states,  and  especially 
in  England,  as  at  Rome,  we  find  parts  of  the  law  develop- 
ing independently  of  legislative  authority.  Such,  for 
example,  is  customary  and  pretorian  law.  He  returns 


144  THEORY  OF   LAW 

with  more  detail  to  the  subject  of  this  theory  in  his 
criticism  upon  Schlosser's  book  in  an  article  in  the 
Gottinger  gelehrte  Anzeiger  of  1789,  and  in  an  article 
entitled,  "Is  Legislation  the  Sole  Source  of  Legal  Rules," 
published  in  Civilistiches  Magazin  in  1814.  The  positive 
law  of  a  people,  said  he,  is  a  part  of  its  language.  We 
may  say  the  same  of  all  science,  that  it  is  only  a  well- 
made  language.  Mathematics,  even,  is  no  exception. 
We  do  not  a  priori  call  angle  all  that  enters  into 
that  term;  numeration  is  not  founded  a  priori  upon 
the  decimal  system;  the  circle  is  not  divided  a 
priori  into  three  hundred  and  sixty  degrees.  It  is 
still  more  true  in  sciences  where  the  signification  of 
words  varies,  and  consequently  in  all  that  con- 
nects itself  with  manners,  in  whatever  is  positive, 
and  so  in  law.  The  Roman  contract,  for  example, 
was  not  by  any  means  the  same  thing  as  that  of 
today. 

How  is  our  language  formed?  Formerly,  it  was 
thought  that  God  himself  invented  and  had  taught  it 
to  men.  Thus,  language  was  thought  to  have  been 
made  by  an  enactment.  Other  authors  supposed  it 
was  made  by  an  agreement  among  men,  through  which 
names  were  given  to  things.  Such  explanations  no 
longer  get  any  credence.  Everybody  knows  our  lan- 
guage forms  itself,  and  that  the  example  of  those  who 
speak  well,  or  are  thought  to  do  so,  has  a  great  influence 
over  our  development.  It  is  the  same  with  manners; 
no  administrator,  no  combination  of  men  ever  decided 
that  respect  should  be  shown  in  Europe  by  uncovering 
the  head,  and  in  Asia  by  veiling  it. 

It  is  the  same  with  law;  like  language  and  manners, 
it  develops  itself  without  aid  of  enactments  or  prescrip- 
tions, according  as  circumstances  present  themselves, 
according  as  our  fellows  act  in  this  way  or  that,  accord- 
ing as  the  rules  so  established  best  suit  the  given  cases. 


THE  CONCEPTION  OF  LAW  145 

In  this  way  positive  law  can  shape  itself  independently 
of  the  legislator's  intervention.  But  when  the  govern- 
ment thinks  it  useful  to  establish  a  new  rule  for  the 
future,  this  rule  belongs  naturally  to  positive  law,  and 
is  taken  into  consideration  like  all  government  orders. 
This  is  not  to  say,  however,  that  everything  prescribed 
is  always  actually  observed.  At  Gottingen,  the  streets 
to  which  the  authorities  wished  to  give  new  names 
continued  in  spite  of  all  ordinances  to  be  called  by  the 
old  ones.  Many  laws  and  agreements  are  never  ob- 
served. Nobody  dreams  that  each  enactment  will  be 
rigorously  observed.  Legislators  themselves  expect  no 
precise  execution  of  their  enactments.  Laws  are  vio- 
lated, not  only  by  the  ill-disposed,  but  by  perfectly 
well-meaning  persons.  Nobody  can  deny  this  fact.  He 
may  regard  it  as  a  defective  condition  of  things.  Never- 
theless, he  must  not  forget  that  it  has  always  been  so 
everywhere;  and  this  observation  has  its  value.  He 
must  not  forget  at  the  same  time  that  the  object  sought 
by  the  positive  written  law  is  to  determine  and  make 
exact  the  legal  order  of  things,,  to  make  its  observance 
more  certain  by  giving  fixity  to  its  principles.  But 
what  is  the  factor  which  co-operates  most  effectively 
to  the  knowledge  and  observance  of  a  rule ;  is  it  a  printed 
enactment  which  few  have  ever  seen,  or  a  permanent 
practice  with  which  all  competent  people  are  in  har- 
mony? Suppose  a  group  of  people  recognize  wills  having 
six  witnesses,  as  valid;  and,  relying  on  this,  each  will  is 
made  with  six  witnesses.  Suppose  afterwards  it  is 
found  that  a  statute  absolutely  requires  seven  wit- 
nesses. Which  rule  ought  to  be  the  law,  the  statute  of 
which  no  one  was  informed  or  the  custom  familiar  to 
all?  Although  the  government  is  the  representative  of 
all  the  people,  the  people  also  can  well  do  something 
directly  for  itself.  It  is  probable  that  the  rules  so 
derived  suit  the  interests  of  the  people  better  than  those 
proposed  by  the  government. 


146  THEORY   OF   LAW 

The  best  explanation  is  in  comparing  the  formation 
of  law  with  that  of  games.  Every  game,  billiards, 
cards,  etc.,  is  a  contest  according  to  fixed  rules,  accord- 
ing to  "laws."  Some  details  are  agreed  upon  in 
advance,  such  as  the  first  play,  etc.  There  is  a  category 
of  rules  governing  the  playing;  but  the  game  has  its 
own  rules  independent  of  all  agreement.  How  are  they 
formed?  Some  games,  to  be  sure,  for  example  Boston, 
have  been  invented  all  complete  by  some  single  man. 
But  most  games  are  of  a  different  kind,  like  whist, 
whose  rules  have  been  established  little  by  little  by  the 
successive  resolution  of  doubtful  questions  in  the  par- 
ticular cases.  A  large  number  of  determinations  of  this 
kind  result  in  fixed  rules  of  the  game  which  thus  form 
themselves  without  enactment  or  agreement.  (Civil- 
istisches  Magazin  von  Prof.  Ritter  Hugo  in  Gottingen. 
B.  IV.  Berlin,  1811.  Sees.  117-134.) 

In  Hugo  we  thus  find  already  indicated  the  char- 
acteristic traits  of  the  historical  school's  doctrine.  The 
comparison  he  proposes  between  law  and  language  is 
notable,  for  the  representatives  of  this  school  con- 
stantly use  it.  It  is  in  Savigny's  (1779-1861)  works 
that  it  is  completely  set  forth.  He  is  counted  even 
outside  of  Germany  as  the  greatest  jurist  of  the  XIX 
century.  He  was  not  a  pupil  of  Hugo,  but,  as  he  himself 
recognized,  Hugo's  work  had  great  influence  over  him. 
The  first  work  of  Savigny  which  attracted  attention  to 
its  author  was  a  study  upon  possession.  It  placed  him 
at  once  in  the  first  rank  of  contemporary  jurists.  Already 
there  can  be  observed  in  it  quite  distinctly  the  peculiar 
characters  of  the  new  tendency.  But  the  general  idea 
of  law  and  its  development,  Savigny  has  particularly 
set  forth  in  his  two  works,  Vom  Beruf  unser  Zeit 
fur  Gesetzgebung  und  Rechtswissenschaft,  Heidel- 
terg,  1814;  and  also  the  first  volume  of  his  System 
des  Heutigen  Romischen  Rechts,  Berlin,  1840.  The 


THE   CONCEPTION   OP  LAW  147 

political  events,   then  marking  the   course  of   German 
history,  impelled  him  to  write  the  first  of  these  works, 
a    little    pamphlet.     Germany    had    just    been   relieved 
of   French   domination   during   which    there   had   been 
applied   in   some    places    the    French    code,    a   system 
quite  preferable  to  the  old  German  law.     This  intro- 
duction of  French  law  offended  the  national  sentiment 
of  the  Germans,    but  showed  them  the  inefficiency  of 
their    own    law.     When    the    French    domination    was 
thrown  off  they  began  to  ask  what  was  to  be  done  in 
the  way  of  legislation.     Some  declared  for  returning  to 
the  old  condition  of  things.     Others  demanded  a  single 
code  for  all  Germany.     The  chief  representative  of  this 
latter  tendency  was  Thibaut   (1771-1840).     His  Ueber 
die     Nothwendigkeit     eines    allgemeinen    burgerlichen 
Rechts   fur   Deutschland   was   published   in    1814,    and 
again  the  same  year  in  a  second  edition  in  the  Civil- 
istische    Abhandlungen,     Heidelberg.     He    proposed    to 
assemble  a  congress  of  theoretical  and  practical  jurists 
to  prepare  a  general  code  for  all  Germany.     He  thought 
local  legislatures  passing  laws  for  each  separate  state 
could  not  reach  the  desired  result;  first,  because  there 
might  not  be  in  some  particular  state  men  of  learning 
equal  to  the  task;  second,  because  local  legislation  with  the 
political  subdivision  then  prevailing  would  lead  to  the 
complete  breaking  to  pieces  of  Germany — a  total  failure 
of  national  unity. 

As  to  the  object,  properly  speaking,  of  this  common 
code  and  of  the  reform,  Thibaut  justifies  this  by  show- 
ing the  defects  in  German  legislation  of  that  time. 
According  to  him  the  codes  were  superannuated  and 
defective  in  form.  All  legislation  consisted  in  a  series 
of  separate  enactments,  which,  established  by  emperors 
and  princes,  remained  separated  and  appeared  so  anti- 
quated that  the  most  conservative  jurists  themselves 
would  not  urge  the  cause  of  their  maintenance.  Roman 


148  THEORY   OP   LAW 

law  was  generally  employed;  but  it  was  a  foreign  law 
and  its  dominant  ideas  did  not,  as  Thibaut  considered, 
answer  to  the  legal  ideas  of  the  German  people,  the  less 
so  because  introduced  into  Germany  under  the  form 
given  them  during  the  final  decadence  of  the  Roman 
empire. 

Moreover,  said  Thibaut,  the  main  part  of  the  contents 
of  these  Roman  laws  does  not  answer  to  the  require- 
ments of  modern  conditions;  and  he  cited  as  examples 
the  law  of  paterfamilias,  of  guardianship,  and  of  hypoth- 
ecation. To  the  many  inconveniences  resulting  from 
the  use  of  Roman  law,  Thibaut  added  that  the  Roman 
law  was  not  known  because  the  authentic  text  has  not 
come  down  to  us.  We  have  several  different  editions, 
so  that  in  Gebauer's,  for  instance,  the  variations,  taken 
together,  constitute  a  fourth  of  the  text,  and  their 
number  augments  constantly  with  the  finding  of  new 
ones.  If  they  were  all  harmonized  this  would  not 
prevent  jurists  from  having  opposite  opinions  upon 
various  questions,  for  a  conscientious  jurist  never  accepts 
another's  opinion  without  first  examining  it.  If  this  is 
so,  practicing  lawyers  would  be  greatly  embarrassed  by 
having  to  choose  between  equally  authoritative  conclu- 
sions supported  by  equally  authoritative  persons  who 
have  devoted  themselves  to  the  study  of  Roman  insti- 
tutions. Convinced  of  the  insufficiency  of  existing  law, 
Thibaut  demanded  the  enactment  of  a  new  code  which 
should  fulfill  the  requirements  of  modern  life  in  general, 
and  of  German  life  in  particular. 

In  developing  this  thesis,  however,  Thibaut  did  not 
anticipate  the  objections  which  Savigny  was  to  bring 
forward.  Savigny  did  not  inquire  whether  the  existing 
law  was  good  or  bad,  perfect  or  imperfect.  He  put  the 
question  on  another  ground.  In  the  introduction  to 
his  Vom  Beruf,  he  attempted  to  show  that  the  work 
of  Thibaut  could  not  be  taken  separately,  but  must 


THE   CONCEPTION   OF  LAW  149 

connect  itself  with  the  historic  conditions  of  its  time. 
In  Thibaut's  project  of  reform,  says  Savigny,  you  will 
not  fail  to  find  traces  of  that  contempt  for  the  past 
which  characterized  the  XVIII  century  and  an  exag- 
geration of  the  role  of  the  present,  which  expects  nothing 
less  from  the  latter  than  the  realization  of  absolute 
perfection.  This  had  its  influence  on  law.  New  codes 
were  demanded  which  could  by  their  improved  opera- 
tion give  to  justice  the  precision  of  mechanics.  At  the 
same  time  these  codes  were  not  to  be  submitted  to  his- 
toric conditions,  were  to  set  forth  the  law  as  a  pure 
abstraction  applicable  to  all  people  and  all  times. 
Moreover,  he  continues,  these  views  as  to  making  over 
the  codes  are  inspired  by  one's  theory  as  to  the  forma- 
tion of  law.  They  think  that  law  is  created  by  the 
simple  act  of  the  legislator  and  the  material  in  legisla- 
tion is  an  absolutely  accidental  phenomenon  which  can 
be  altered  to  suit  the  legislator's  taste.  Savigny  sets 
himself  to  the  task  of  showing  that  both  the  ideas  on 
which  Thibaut's  proposition  rested,  the  exaggerated 
hope  he  had  of  his  own  time  and  the  dependence  of  law 
upon  the  legislator,  are  equally  false,  that  law  cannot 
be  fashioned  to  suit  the  legislator's  fancy,  and,  in  par- 
ticular, that  it  could  not  be  admitted  that  at  the  begin- 
ning of  a  new  age  a  codification  should  be  attempted 
while  German  jurisprudence  was  admittedly  so  far 
behind. 

Passing  over  this  last  consideration  we  shall  limit 
ourselves  to  a  resume  here  of  Savigny's  ideas  upon  the 
origin  of  law. 

According  to  Savigny,  it  cannot  be  admitted  that 
law  in  its  origin  depends  either  upon  chance  or  human 
choice.  Fact  contradicts  this.  Every  time  a  legal 
problem  is  solved  we  find  ourselves  in  the  presence  of 
completely  formed  legal  rules.  So,  it  is  impossible  to 
say  that  law  was  created  by  the  will  of  the  separate 


150  THEORY   OF   LAW 

individuals  who  compose  a  people.  On  the  contrary,  it 
must  be  considered  as  a  product  of  the  people's  genius 
manifesting  itself  in  all  the  members  of  the  people  and 
leading  them  thus  to  the  notion  of  law.  We  cannot 
prove  the  soundness  of  this  opinion  by  direct  historic 
proofs.  History  finds  in  all  peoples  law  already  estab- 
lished, having  a  positive  character  with  an  original 
national  imprint  like  their  language,  manners  and 
political  organizations.  But  we  find  indirect  proofs  to 
support  the  hypothesis.  The  fact  that  in  our  con- 
sciousness the  notion  of  positive  law  is  always  connected 
with  that  of  necessity,  which  would  be  impossible  if 
law  were  a  creation  of  our  free  will,  testifies  in  favor  of  a 
formation  of  law  in  which  the  will  has  no  part.  Another 
argument  can  be  given  furnished  by  the  analogy  with 
certain  other  manifestations  of  popular  life,  especially 
with  language,  which  is  also  by  no  means  a  product  of 
man's  free  will. 

The  law  exists  in  the  general  consciousness  of  the 
people  evidently  not  under  the  form  of  an  abstract  idea, 
but  under  that  of  a  living  comprehension  of  legal  insti- 
tutions in  their  organic  combination.  Generally  at  the 
beginning  of  their  formation  people  are  not  rich  in 
ideas.  But  they  have  then  a  consciousness  of  their 
state — of  their  vital  conditions,  and  of  the  law,  which 
is  not  then  complex  in  its  matter,  and  would  appear  to 
them  as  an  object  of  immediate  belief.  A  material 
form  is,  then,  needed  for  every  manifestation  of  spiritual 
function.  In  the  case  of  language  this  material  form  is 
its  continual  use;  in  that  of  political  organizations  its 
material  representative  is  the  existing  legal  institutions. 
In  our  time,  when  the  mind  is  trained  to  abstraction,  the 
main  leading  principles  contained  in  the  current  legal 
formulas  play  the  same  part. 

But  this  supposes  already  a  good  many  abstract  ideas 
which  are  not  to  be  found  in  primitive  law.  We  find  in 


THE   CONCEPTION   OP  LAW  151 

this  phase  of  legal  development  a  series  of  symbolic 
actions  which  accompany  the  creation  and  cessation  of 
legal  relations  and  which,  thanks  to  their  exteinal  mani- 
festation, tend  to  keep  the  law  to  a  fixed  form.  These 
symbolic  actions  were  a  sort  of  grammar  of  the  law 
which  answered  the  necessities  of  their  time.  This 
solidarity  of  the  law  with  the  popular  genius  persists 
into  later  epochs,  and  in  this  respect  again  law  may  be 
compared  to  language.  Just  like  our  language  and  all 
other  manifestations  of  popular  life,  law  develops  unin- 
terruptedly and  its  evolution  like  its  first  appearance 
is  under  the  law  of  internal  necessity.  But  in  a  civilized 
society  this  internal  development  is  complicated,  and 
the  study  of  law  becomes  exceedingly  difficult. 

Law  has  its  source,  no  doubt,  in  the  general  conscious- 
ness of  the  people.  If  we  take,  for  example,  Roman  law, 
we  might  well  admit  that  its  chief  foundations,  the 
law  of  family,  of  property,  etc.,  existed  in  the  general 
consciousness  of  the  people;  but  hardly  so  as  to  the  com- 
plex matter  which  the  pandects  offer.  This  observa- 
tion leads  us  to  examine  the  question  under  another 
aspect.  With  the  progress  of  social  life  the  different 
sides  of  national  activity  individualize  and  separate 
from  one  another.  What  was  before  done  by  all  the 
world  becomes  the  function  of  a  special  class.  The  jurists 
form  thus  a  special  class,  and  their  legal  studies  replace 
the  immediate  activity  of  the  people  as  a  whole.  There- 
after the  law  becomes  more  complex,  more  technical. 
There  is,  so  to  speak,  a  double  existence:  on  the  one 
side  a  general  national  life,  on  the  other  the  distinct 
science  of  the  jurists.  The  relation  of  law  to  the  gen- 
eral life  of  the  people  might  be  called  its  political  ele- 
ment; its  connection  with  juristic  science,  its  technical 
element.  The  correlation  of  these  two  elements  varies 
with  the  elements  of  the  life  of  a  people,  but  both  par- 
ticipate more  or  less  in  the  development  of  law. 


152  THEORY  OF   LAW 

If  law  is  thus  considered  as  a  product  of  a  people's 
life,  as  a  manifestation  of  its  spirit,  it  is  clearly  of  much 
importance  to  define  just  what  Savigny  means  by  "the 
people."  In  his  Vom  Beruf  he  leaves  this  question 
aside.  It  is  only  in  the  System  which  appeared  when 
the  principles  of  the  historical  school  had  received  their 
full  development  that  we  find  a  paragraph  devoted  to 
explaining  the  notion  of  a  "people." 

If  we  abstract  the  matter,  the  contents  of  law,  in 
order  to  examine  only  the  general  essence  of  all  law,  it 
appears  to  us  as  a  norm  determining  in  a  certain  manner 
the  community  life  of  a  collectivity.  An  accidental 
aggregate  forming  an  indeterminate  collection  of  men 
is  an  arbitrary  notion  destitute  of  all  reality.  If  such 
an  aggregate  really  existed,  it  would  surely  be  incapable 
of  making  a  law.  But  wherever  we  see  men  live  together, 
we  see  them  forming  a  spiritual  unity.  This  unity  mani- 
fests and  declares  itself  in  the  use  of  a  common  lan- 
guage. Law  forms  a  part  of  this  spiritual  unity  since 
in  the  popular  spirit  with  which  everybody  is  permeated 
there  is  manifest  a  force  capable  of  satisfying  the  need 
for  regulation  of  this  common  life  of  men.  In  con- 
ceiving the  people  as  a  unity,  we  must  not  only  think  of 
living  numbers  of  the  existing  generation;  the  spiritual 
unity  embraces  also  successive  generations,  the  future 
and  the  past.  Law  is  preserved  in  the  people  by  force 
of  tradition  which  establishes  and  maintains  itself 
because  the  succession  of  generations  does  not  take 
place  rapidly  and  at  a  stroke,  but  regularly  and  insen- 
sibly. 

It  might  appear  too  narrow  a  view  that  law  is  a 
product  of  the  life  of  a  people;  perhaps  one  might  say 
that  the  source  of  law  should  be  sought  not  in  the 
genius  of  a  people,  but  in  that  of  humanity. 

The  formation  of  law  is  marked  by  a  character  of 
solidarity;  it  is  possible  only  where  solidarity  of  thought 


THE  CONCEPTION  OF  LAW  153 

and  action  are  to  be  found.  These  conditions  are  only 
found  within  the  limits  of  distinct  nations.  Naturally 
in  the  life  of  each  people  there  appear  also  universal 
tendencies  and  qualities. 

Savigny  is  the  most  typical  representative  of  the 
historical  school.  Puchta,  the  first  of  his  disciples  (1798- 
1846),  in  his  Encyclopadie  als  Einleitung  zu  Institu- 
tionen,  1825,  and  in  the  first  volume  of  his  Insti- 
tutes, 1844,  a  work  which  was  translated  into  Russian, 
yielded  to  the  influence  of  the  philosophic  doctrines  cf 
his  contemporary,  Schelling.  Puchta  makes  objective, 
personifies,  the  popular  mind.  He  considers  it  as  a 
force  acting  in  the  organism  of  popular  life  and  existing 
independently  of  the  consciousness  of  the  individuals 
who  make  up  the  people.  The  popular  mind,  like  the 
soul  in  the  organism,  produces  all,  including  the  law. 
Individuals  take  no  active  part  in  its  formation.  It  is 
upon  the  nature  of  a  people's  genius  that  the  develop- 
ment of  its  law  depends;  not  upon  its  consciousness. 
This  is  why  if  Savigny  speaks  still  of  the  formation  of 
law  as  a  result  of  the  common  life  (eine  gemeinsckaftliche 
That)  Puchta  on  the  contrary  considers  the  development 
of  law  as  natural  and  independent  (Naturwuchsigkeit) . 
According  to  this  doctrine,  law  proceeds  from  the  popu- 
lar spirit  as  the  plant  from  the  germ;  its  form  as  well  as 
its  evolution  is  fixed  in  advance.  Individuals  are  only 
passive  bearers  of  the  law  which  they  have  had  no  part 
in  making. 

Puchta  has  developed  with  a  good  deal  of  detail  his 
idea  as  to  the  origin  of  law  in  his  celebrated  monograph 
on  customary  law.  (Gewohnheitsrecht,  1828.)  Here  is 
his  demonstration:  Holy  Scripture,  said  he,  explains  the 
origin  of  mankind  in  this  manner.  There  was  first  one 
individual,  then  two,  a  man  and  a  woman,  then  their 
descendants.  The  first  individuals  formed  from  the 
start  a  determinate  group,  the  family  group.  The  first 


154  THEORY  OF  LAW 

family  multiplying,  divided  into  several  and  became 
a  tribe,  a  people,  who,  continuing  to  multiply,  divided 
into  new  tribes  to  become  in  their  turn  new  people. 
This  explanation  is  so  natural  that  we  find  it  in  the 
pagan  legends.  The  important  thing  it  establishes  is 
that  at  no  moment  did  men  ever  live  without  forming 
some  organic  unity.  The  unity  of  a  people  is  founded 
upon  unity  of  origin  not  only  physical  but  spiritual. 
Common  parentage,  however,  does  not  alone  suffice  to 
form  a  people.  There  would  then  be  only  one.  The 
separation  between  one  people  and  another  is  marked 
by  the  delimitation  of  their  territories,  and  thus,  to 
their  natural  unity  is  added  another,  which  is  expressed 
in  the  political  organization  (Verfassung) ,  thanks  to 
which  the  people  forms  a  state. 

The  state  is  not  a  natural  group.  It  is  established  by 
will.  The  political  organization  is  the  expression  of  the 
general  will  as  to  that  which  makes  the  essence  of  the 
state.  This  general  will  could  have  originally  and 
immediately  no  other  source  than  natural  agreement 
and  unanimity  (Naturlicke  Uebereinstimmung).  The 
state,  then,  is  created  by  the  immediate  action  of  will, 
but  this  will,  and  consequently  the  state  itself,  has  its 
root  in  the  natural  society.  The  people  should  be  con- 
ceived as  a  natural  group.  Consequently,  the  possibility 
of  its  acting  ought  to  be  abandoned,  for  only  an  indi- 
vidual can  act.  A  mere  grouping,  a  unity,  so  far  as  it 
is  only  a  mere  idea — a  body  wholly  uncertain,  cannot 
act.  The  action  of  the  people  in  the  natural  meaning 
of  the  term  can  be  considered  only  as  an  indefinite  influ- 
ence over  its  members,  an  influence  depending  upon 
the  nature  of  the  "people,"  that  is  to  say,  its  parentage. 
Law  is  connected  with  these  manifestations  of  popular 
life.  (Tkdtigkeiten  der  Volk.)  Climate,  etc.,  does  not 
influence  men  directly;  it  determines  the  qualities  of  the 
nation  and  these  later  act  upon  its  members.  The 


THE  CONCEPTION   OF  LAW  155 

individual  can  reflect  the  law  in  his  consciousness,  not  in 
his  capacity  as  an  individual,  or  as  member  of  a  family, 
but  only  as  a  member  of  a  people.  This  characteristic 
distinguishes  law  from  matter  of  individual  conscious- 
ness. The  existence  of  juridical  liberty  supposes  that 
to  the  man's  will  is  opposed  another,  which  is  considered 
as  partly  foreign  and  exterior,  and  partly  the  individual's 
own  will,  based  upon  his  personal  convictions.  Man  be- 
comes a  legal  person  and  subject  to  law  only  so  far  as  his 
will  is  at  the  same  time  individual  and  general,  is  at  the 
same  time  absolutely  independent,  and  meanwhile  is 
based  upon  a  general  conviction  that  it  is  acting  in  har- 
mony with  others. 

Puchta  proves  in  the  following  manner  that  law  can 
only  arise  out  of  the  life  of  a  people:  As  long  as  there 
was  only  one  man  there  was  opposed  to  his  will  only 
that  of  God  which  would  wholly  overcome  his.  When 
there  was  only  one  family  and  not  a  people,  the  husband 
was  master  of  his  wife,  who  had  no  distinct  will.  So,  it 
is  only  in  a  people  that  there  arises  that  opposition  of 
wills  necessary  to  the  formation  of  law.  By  this  process, 
however,  one  can  only  prove  that  the  people  is  causa 
instrumental  of  law.  It  is  necessary  also  to  prove  what 
is  causa  principalis.  Two  phases  in  law  can  be  distin- 
guished; first,  the  conviction  as  to  what  is  law;  second, 
the  realization,  the  application  of  that  conviction.  Law 
which  cannot  be  realized  is  no  law.  Still  further,  an  ac- 
cidental realization,  as  by  war,  for  example,  does  not 
answer,  for  a  force  purely  natural  serves  law  only  acci- 
dentally, since  it  could  as  well  enforce  what  is  not  law. 
The  law's  protection,  strictly  corresponding  to  law  itself, 
can  only  be  applied  by  a  special  organ  of  the  "general 
will,"  that  is  to  say,  by  the  political  organization.  The 
source  of  law  is  nothing  else  than  that  will  which  directs 
the  formation  of  the  state,  the  general  will  of  the  people. 
The  state  cannot  be  considered  as  the  creator  of  law. 


156  THEORY  OF   LAW 

The  state  is  only  an  organ  of  expression  for  the  general 
will  which  exists  before  it  and  which  created  the  law. 
But  before  the  creation  of  the  state  there  is  no  law  be- 
cause there  is  no  organ  which  expresses  the  general  will. 
In  considering  the  people  as  the  creator  of  law  there  is 
no  need  of  opposing  "people"  to  "government."  It  is 
not  necessary  to  believe  in  anything  more  than  an  activ- 
ity of  the  people,  either  composed  of  individual  activity, 
or  derived  from  this  last. 

Here  Puchta  enters  into  a  discussion  with  Schlegel. 
He  calls  the  latter's  opinion  upon  this  point  trivial  and 
superficial.  The  conviction  of  an  individual  he  declares 
cannot  transform  itself  into  that  of  a  people.  Thus,  ac- 
cording to  Puchta  the  popular  mind  is  a  distinct,  inde- 
pendent force.  It  is  not  a  product  of  the  historic  life  of 
a  people,  it  exists  from  the  beginning  of  the  people's 
historic  evolution  and  determines  both  the  customs  and 
history  of  the  people.  It  carries  in  itself  its  own  notion 
of  law  which  is  manifested  in  the  consciousness  of  each 
member  of  the  people.  The  popular  idea  as  to  law  is  its 
primitive  source.  But  Puchta  stops  here.  He  does 
not  explain  how  this  general  idea  of  the  people  as 
to  law  is  formed.  He  supposes  it  simply  given  and 
existing.  Therefore,  his  explanation  stops  midway,  in- 
complete. 


THE  CONCEPTION  OF  LAW  157 


Section  20.     The  Origin  of  Law 

In  order  to  explain  the  origin  of  law  we  must  not  limit 
ourselves  to  explaining  its  evolution.  The  main  and 
most  difficult  question  arises  in  the  explanation  of  its 
primordial  origin,  in  explaining  the  way  in  which  the 
conception  of  it  first  appeared.  In  modern  life  its  activ- 
ity is  conscious.  We  start  with  the  idea  that  existing 
law  is  incomplete.  But  whence  came  the  first  concep- 
tion of  law?  The  determination  of  this  question  is  by 
so  much  the  more  difficult  as  the  idea  supposes  always 
an  object  and  materials  already  existing.  Ordinarily  the 
object  of  a  conscious  act  is  given  by  another  conscious 
act  which  precedes.  But  when  the  question  relates  to 
the  prime  origin  of  the  conception  of  something  this  mode 
of  explanation  cannot  be  used.  We  can  only  suppose 
either  that  the  conception  of  law  is  innate  or  that  the 
object  of  this  conception  was  originally  given  by  uncon- 
scious act. 

The  idea  of  law  might  be  innate.  This  proposition  can 
be  understood  in  two  ways.  First,  The  material  of  law, 
its  subject-matter,  can  be  regarded  as  innate,  but  this 
necessitates  admitting  the  hypothesis  of  natural  law 
which  we  have  just  shown  is  incorrect.  Second,  The  con- 
sciousness of  the  necessity  of  legal  rules  might  be  re- 
garded as  innate  independently  of  their  possible  sub- 
stance. If  this  were  so,  the  notion  of  law  must  appear 
from  the  beginning  in  human  consciousness  under  its  gen- 
eral form,  separated  in  a  distinct  manner  from  other 
ideas,  such  as  morality,  and  religion,  for  example.  But 
in  reality  we  discover  the  contrary.  The  idea  of  law  ap- 
pears primitively  under  a  concrete  form;  the  general  idea 
of  law,  which  embraces  all  of  its  concrete  elements,  is 
relatively  late  in  forming.  An  uncultivated  man  recog- 


158  THEORY  OP  LAW 

nizes  only  separate  laws;  he  has  not  reached  the  idea  of 
law  in  general.  In  the  same  way  the  separation  between 
law,  on  the  one  side,  and  morality  and  religion,  on  the 
other,  is  a  thing  which  appears  relatively  late.  In  the 
beginning,  law,  morals,  religion  and  customs  form  a  sin- 
gle whole.  Therefore,  from  this  point  of  view  we  cannot 
admit  that  the  conception  of  law  is  innate. 

There  remains  the  possibility  of  supposing  that  primi- 
tively the  conception  of  law  acquires  its  materials  uncon- 
sciously. But  how  explain  this  fact?  How  can  legal 
rules  be  unconsciously  established? 

To  give  an  explanation  of  it,  the  manner  in  which  the 
primary  origin  of  conscious  activity  is  understood  must 
be  considered.  Modern  psychology  does  not  admit  that 
conscious  will  is  innate  in  us.  Thus  Bain  (The  Emotions 
and  the  Will)  explains  the  phenomena  of  will  by  the 
general  psychological  law  of  association.  According  to 
him  the  will  is  not  inborn  as  a  primitive  faculty  of  the 
mind;  it  is  a  product  of  our  psychic  development.  Primi- 
tively, we  act  unconsciously;  it  is  the  spontaneous  activ- 
ity of  our  organization  that  presses  us  to  action.  This 
activity  depends  upon  the  nervous  energy  which  accumu- 
lates in  us,  thanks  to  the  vital  phenomena  which  produce 
it.  So  are  explained  the  movements  of  the  foetus;  it 
is  thus  that  children  act,  cry  and  run;  it  is  thus 
that  we  ourselves  act  without  any  reason  after  a  long, 
fatiguing  inaction.  But  all  acts  which  we  perform  un- 
consciously leave  behind  them  in  consciousness  two  ideas, 
that  of  the  action  itself,  and  that  of  its  consequences, 
agreeable  or  otherwise.  The  oftener  this  experience 
is  repeated,  the  closer  the  association  in  our  mind 
of  the  two  ideas,  so  that  when  we  recall  the  action  this 
idea  brings  up  the  associate  one,  that  is  to  say,  that  of 
the  consequences  agreeable  or  disagreeable;  and  it  is 
thus  that  the  given  action  seems  to  us  good  or  bad, 
desirable  or  not.  The  more  perfect  the  association  of 


THE   CONCEPTION   OF  LAW  159 

these  ideas  the  more  fixed  are  our  desires;  the  weaker 
the  association  the  more  vague  are  our  desires.  But 
even  when  conscious  desires  arise  by  the  reproduction 
of  the  idea  of  a  given  action  and  of  its  consequences, 
this  does  not  suffice  to  produce  the  given  action.  Many 
things  appear  desirable  which  we  never  reach.  "Video 
meliora,  proboque,  deteriora  sequor."  This  explains  that 
the  idea  alone  cannot  arouse  activity.  There  must  be 
a  certain  tension  of  energy  in  the  nervous  system  for 
action  to  follow.  The  same  desires,  according  to  the 
state  of  the  nervous  system,  according  as  it  is  depressed 
or  excited,  may  transform  themselves  into  actions,  or  may 
not  do  so. 

Steinthal  (Abriss  der  Sprachwissenschaft)  explains  in 
the  same  way  the  origin  of  language:  Influenced  by 
emotion  man  makes  involuntarily  certain  sounds;  these 
sounds  make  on  him  and  on  his  fellows  a  certain  impres- 
sion. With  a  return  of  the  same  circumstances  there 
is  formed  little  by  little  a  closer  and  closer  association 
between  the  idea  of  the  sound  and  that  of  the  impres- 
sion which  led  to  it.  The  idea  of  this  impression  arouses 
in  the  mind,  thanks  to  the  association,  an  idea  of  the 
sound,  and  if  the  impression  is  agreeable  the  sound  is 
pronounced  consciously.  This  association  explains  the 
transformation  of  involuntary  sounds  in  consciously 
pronounced  words.  The  idea  of  the  impression,  asso- 
ciated with  the  sound,  constitutes  the  meaning  of  the 
word. 

It  seems  to  me  we  can  explain,  also,  in  the  same  way 
the  origin  of  law. 

Given  the  identity  of  conditions  and  the  simplicity  of 
relations  in  primitive  society,  the  individuals  who  make 
it  up  must  live  in  an  identical  fashion.  The  weak  devel- 
opment of  the  conscious  idea,  the  repetition  and  narrow- 
ness of  experienced  impressions,  a  very  strong  tendency 
to  imitation,  cause  the  primitive  man  to  act  in  most 


160  THEORY  OF  LAW 

cases  just  like  his  fellows,  like  his  father  and  his  early 
ancestors.  Consequently,  each  man  is  persuaded  that 
under  the  same  conditions  everybody  will  act  the  same 
way.  He  expects  this  habitually  invariable  conduct;  he 
counts  upon  it  and  with  this  expectation  arranges  his 
own  affairs.  If  as  result  on  some  particular  occasion  he 
is  disappointed  in  his  expectations,  if  some  one  does  not 
act  towards  him  as  he  anticipated,  as  others  usually  act 
in  such  circumstances,  he  experiences  a  feeling  of  dissat- 
isfaction and  anger;  he  utters  reproaches  against  the  be- 
trayer of  his  expectations  and  seeks  to  avenge  himself. 
The  oftener  collisions  of  this  kind  occur,  the  more  the 
idea  of  violation  of  the  conduct  which  custom  has  estab- 
lished is  associated  with  that  of  reproaches,  with  anger, 
and  revenge  on  the  part  of  the  sufferer  from  such  viola- 
tion. And  so  the  observation  of  customs,  first  instinc- 
tive and  unconscious,  establishes  itself  and  is  transformed 
into  a  conscious  idea.  At  length  the  custom  is  observed 
not  merely  because  of  habit  and  unconscious  propensity, 
but  also  because  of  the  idea  of  disagreeable  results  which 
the  violation  of  custom  brings.  Consequently,  the  con- 
sciousness of  an  obligatory  character  in  custom  has  then 
appeared.  The  custom  is  observed,  even  when  there 
is  some  interest  and  some  tendency  to  violate  it,  in 
order  to  avoid  unpleasant  consequences  of  its  vio- 
lation. The  appearance  of  this  idea  of  necessity,  opinio 
necessitates,  transforms  a  simple  habit  unconsciously 
and  instinctively  observed  into  juridical  custom,  con- 
sciously observed,  and  recognized  as  obligatory.  This 
custom  is  the  primitive  form  of  juridical  norms.  Thus, 
the  origin  of  law  depends  upon  the  conscious  observ- 
ance of  certain  rules  recognized  as  obligatory,  but  the 
matter  in  these  primitive  juridical  norms  is  not  con- 
sciously formed;  it  is  given  unconsciously  by  established 
customs. 
This  explanation  of  the  origin  of  law  makes  compre- 


THE   CONCEPTION  OF  LAW  161 

hensible  the  reason  why,  primitively,  law  is  considered  as 
an  order  independent  of  will,  why  a  divine  origin  is  as- 
signed to  it.  Human  consciousness  finds  law  already  es- 
tablished and  set  up  as  the  result  of  customs  unconsciously 
established.  As  he  is  unable  to  explain  in  a  natural  man- 
ner the  origin  of  these  customs,  man  regards  law  as  a 
divine  institution.  Law  has  thus,  in  men's  eyes,  the  guise 
of  objective  order,  independent  of  human  will,  and  of  the 
free  choice  of  man. 

In  considering  as  obligatory  the  long  established  cus- 
toms, man  makes  no  distinction  between  the  primitive 
form  and  the  matter  of  these  customs.  He  regards  as  ab- 
solutely obligatory  an  observance  of  the  form  as  well  as 
of  the  matter  which  it  carries.  For  this  reason  the  first 
phases  of  development  of  law  are  characterized  by  rigor- 
ous formalism. 

If  ancient  customs  were  looked  upon  as  obligatory, 
whatever  their  matter,  this  explains  the  complete  confu- 
sion in  primitive  society  of  morality,  religion  and  rules  of 
convenience. 


162  THEORY  OF   LAW 

Section  21.    Development  of  Law 
IHERING.     Kampf  urn's  Recht,  7.     Aufl.  1884. 

In  the  preceding  paragraph  it  was  sought  to  explain 
the  origin  of  law.  It  remains  to  show  how  it  develops. 
We  find  very  different  opinions  as  to  this  in  legal  litera- 
ture. They  can  all  be  brought  under  three  categories. 
According  to  some,  law  does  not  develop  regularly,  and 
the  changes  produced  by  time  are  accidental  or  arbitrary. 
This  is  the  point  of  view  of  the  old  theories  which  pre- 
ceded the  historical  school.  These  theories  have  been 
definitely  abandoned.  The  idea  of  legal  historic  evolu- 
tion is  so  universally  admitted,  that  the  doctrine  of  the 
arbitrary,  or  accidental  character,  of  historic  changes  in 
the  law  does  not  even  find  adversaries  in  modern  litera- 
ture. 

Another  theory  as  to  the  character  of  the  development 
of  law,  which  has  held  up  till  now  its  vogue,  is  that  of 
the  historical  school.  One  can  characterize  it  by  saying 
that  it  is  the  doctrine  of  the  natural  formation  of  law 
(Naturwuchsigkeit) .  The  historic  evolution  of  law  ap- 
peared as  the  successive  development  of  the  principles 
of  law  conceived  by  the  popular  mind;  it  was  conceived 
as  a  development  taking  place  without  any  struggle,  as 
pacific  as  that  of  the  plant  springing  from  a  germ.  Just 
as  in  the  germ  the  qualities  of  the  plant  which  comes 
from  it  are  naturally  and  necessarily  already  fixed,  so 
in  the  popular  mind,  from  the  people's  appearance  on 
the  historic  arena,  the  principles  which  determine  the 
matter  of  its  national  system  of  law  are  settled  in  ad- 
vance. In  this  respect,  law  is  completely  analogous  to 
language.  Juridical  norms  like  rules  of  grammar  develop 
of  themselves  without  the  intervention  of  the  individual 
will. 


THE  CONCEPTION  OF  LAW  163 

This  doctrine  of  the  historical  school  evidently  exag- 
gerates the  idea  of  the  regularity  of  historical  develop- 
ment of  law.  In  resisting  the  theory  which  conceives  the 
law  as  a  product  of  individual  choice,  the  historic  school 
came  naturally  to  deny  to  the  individual  will  any  part 
in  the  law's  development.  Besides,  the  conservative  ten- 
dency of  the  school  helped  to  render  still  more  negative 
the  part  of  human  will  in  legal  development.  The  his- 
toric school  appeared  at  the  commencement  of  the  XIX 
century  as  a  formal  reaction  against  the  revolutionary 
doctrines  which  rested  upon  the  rationalistic  system  of 
the  XVIII  century.  The  doctrine  of  a  legal  develop- 
ment, independent  of  human  will,  took  away  all  field  for 
revolutionary  attempts  towards  changing  old  organiza- 
tions. 

This  idea  as  to  the  development  of  law  was  not  a  nec- 
essary consequence  of  the  historical  tendency.  Pressed 
too  far,  it  would  contradict  the  notion  of  historic  evolu- 
tion of  law.  History  is  not  a  progress  taking  place  of 
itself,  where  human  beings  are  only  uninterested  specta- 
tors; it  is  made  up  precisely  of  human  actions;  it  is  cre- 
ated by  man.  If  history  in  general  has  this  character, 
the  history  of  law  in  particular  can  have  no  other.  Hu- 
man actions  constitute  the  chief  immediately  acting  fac- 
tor in  it.  Legal  rules  are  not  indifferent  to  men  like  those 
of  grammar,  as,  for  instance,  the  employment  of  this 
or  that  preposition  following  such  a  case,  or  of  con- 
junctions after  such  a  mode.  They  touch  directly 
upon  the  vital'  interests  of  man.  Therefore,  the  estab- 
lishment or  removal  of  a  legal  rule  provokes  necessarily  a 
struggle. 

Thus,  the  natural  development  of  law  cannot  go  on 
without  stirring  up  strife.  In  fact,  law  springs  up  as  the 
fruit  of  a  strife,  sometimes  a  lasting  and  obstinate  one. 
But  this  does  not  prevent  the  regularity  of  its  de- 
velopment. The  question  is  only  to  know  what  are 


164  THEORY  OF  LAW 

the  forces  acting  upon  this  development  which  lead  to 
it.  Is  it  the  struggle  of  human  interests,  or  is  it 
some  mysterious  popular  spirit  sprung  from  no  one 
knows  where?  The  regularity  of  the  action  of  the 
forces  which  form  law  remains  outside  of  this  considera- 
tion. 

This  new  theory  that  the  development  of  law  is  a  prod- 
uct of  the  struggle  between  social  interests  was  brought 
forward  by  Ihering  in  opposition  to  the  doctrine  of  the 
historical  school  as  to  the  natural  growth  of  law.  Ihering 
made  this  theory  the  subject  of  a  small  but  substantial 
pamphlet :  The  Struggle  for  Law. 

The  idea  of  a  " struggle  for  law"  expresses,  much  more 
simply  than  does  that  of  its  "natural  growth,"  its  his- 
toric development  and  the  manner  of  its  production. 
The  theory  of  natural  development  considers  as  an  ab- 
surdity the  revolutionary  changes  which  we  meet  with 
so  often  in  history.  It  is  incapable  of  expressing  in  a  sat- 
isfactory manner  the  heterogeneous  character  of  a  nat- 
ural system  of  law,  some  parts  of  which,  after  their  dis- 
similarity is  recognized,  cannot  be  considered  as  the  result 
of  natural  development  of  eternal  and  unchangeable 
principles  in  the  popular  mind. 

The  idea  of  the  "struggle  for  law"  has  still  another  ad- 
vantage over  that  of  its  natural  growth.  This  latter  con- 
siders law  exclusively  as  a  product  of  the  popular  life. 
The  historical  school  was  compelled,  for  example,  to  deny 
the  existence  of  international  law  because  it  cannot  be 
recognized  as  a  product  of  a  single  people's  life.  The 
representatives  of  the  historical  school  ignored  completely 
any  universal  character  in  law,  attaching  importance  only 
to  its  national  peculiarities.  On  the  contrary,  according 
to  the  theory  of  the  "struggle  for  law"  the  development 
of  law  does  not  connect  itself  with  any  special  form  of 
social  life.  Therefore  it  can  show  why  law  may  be 
elaborated  not  only  within  the  confines  of  a  single 


THE    CONCEPTION    OF    LAW  165 

people's  life,  but  in  those  of  the  whole  social  collectiv- 
ity. 

Notwithstanding  all  this,  Ihering's  doctrine  cannot  be 
adopted  without  some  reserves.  We  cannot  admit  that 
in  its  entirety  law  is  a  product  of  conscious  activity, 
of  conscious  strife.  On  the  contrary,  it  must  be  ad- 
mitted that,  primitively,  customs  are  established  uncon- 
sciously, and  that  with  the  lapse  of  time  they  become 
legal  institutions.  These  ancient  customs  have  the 
advantage  of  being  very  precise.  Being  old  and  in 
constant  use  and  known  to  all  the  world  they  are  more 
stable,  more  fixed,  than  any  mere  legal  rule.  Therefore, 
in  the  interests  of  public  order  it  is  desirable  that  they 
be  maintained.  But  at  the  same  time  they  are  very 
formal.  Being  old,  they  never  correspond  to  the  latest 
conditions  of  social  life,  and  when  social  relations  change, 
these  old  customs  become  very  inconvenient  and  embar- 
rassing. It  becomes  more  and  more  necessary  to  re- 
place them,  using  new  legal  rules  consciously  established 
and  corresponding  to  actual  vital  conditions.  In  con- 
trast with  the  old  law,  rigorous  and  troublesome,  these 
new  legal  rules  seem  to  us  more  just.  Whence  it  follows 
that  legal  development  as  a  whole  is  a  struggle  of 
old  law  unconsciously  established  against  new  law  con- 
sciously adopted.  The  Roman  jurists  had  already  ob- 
served this  duality  in  the  law;  the  difference  which  they 
make  between  jus  strictum  et  aquitas  has  precisely  this 
meaning. 


BOOK  II 

LAW   FROM   THE    OBJECTIVE   AND   THE    SUB- 
JECTIVE  POINTS  OF  VIEW 

CHAPTER  I 
LAW  OBJECTIVELY   CONSIDERED 

THON.     Rechtsnorm  und  subjektives  Recht. 
BIERLING.      Zur    Kritik    der    Juristischen    Grundbegriffen.      B. 
II.,  1883. 

THOEL.     Einleitung  in  das  Deutsche  Privatrecht. 

BINDING.     Die  Normen  und  ihre  Uebertretungen.     B.  II.,  1872. 

Section  22.     The   Objective   and  the  Subjective  Points  of 
View  in  Law 

In  regulating  human  activity,  legal  rules  give  to  men's 
relations  with  each  other  a  special  character.  From  rela- 
tions of  fact  they  transform  them  into  relations  of  law. 
Every  man  regulates  his  own  activity  according  to  legal 
rules.  His  relations  with  his  fellows  are  not  determined 
in  each  case  of  conflicting  interest,  according  to  the  facts 
which  present  themselves,  but  according  to  the  delimi- 
tation of  those  interests  by  law.  Men's  mutual  rela- 
tions controlled  by  legal  rules  are  made  up  of  rights  and 
obligations  which  correspond  to  and  depend  upon  each 
other.  In  delimiting  the  interests  in  conflict  the  legal 
rule  sets,  first,  the  limits  within  which  a  given  interest 
may  be  realized.  This  is  the  right.  Second,  it  sets  at 
the  same  time  corresponding  limits  excluding  other  con- 
temporary interests.  This  is  the  obligation.  The  rela- 
tion thus  established  between  right  and  obligation  is  a 
juridical  one. 

In  this  way  law  comprehends  at  the  same  time  rules 
and  relations.  These  legal  rules  and  legal  relations  are 
two  quite  distinct,  if  inseparable  sides  of  law,  the  objec- 
tive and  the  subjective  sides. 


168  THEORY  OF  LAW 

Legal  relations  are  called  law  (right)  in  the  subjective 
sense  because  the  right  and  the  obligation  alike  pertain  to 
the  "subject,"  their  bearer.1  Without  him  they  could 
not  exist.  Rights  and  obligations  must  necessarily  per- 
tain to  some  one.  On  the  other  hand,  legal  rules  do  not 
necessarily  imply  any  one's  presence.  They  have  a  gen- 
eral and  abstract  character,  and  are  not  designed  for  any 
particular  person  (subject).  This  law  is  in  a  sense  ob- 
jective. 

As  we  are  proceeding  now  to  examine  the  distinctive 
characteristics  of  legal  rules  and  relations,  we  will  com- 
mence with  objective  law,  which  from  its  abstract  char- 
acter submits  itself  more  readily  to  analysis.  We  must 
observe  meanwhile  that  objective  law  did  not  precede  sub- 
jective right;  quite  the  contrary.  Historical  development 
begins  with  the  particular,  not  with  the  general.  So,  at 
the  beginning,  rights  (subjective  law)  first  spring  up. 
Then  come  the  general  rules  which  regulate  these  rights. 

Before  the  appearance  of  a  single  general  themis,  there 
was  a  belief  in  a  plurality  of  such  deities,  applying  them- 
selves to  the  determination  of  individual  cases.  The 
primitive  judge  did  not  apply  pre-existing  general  rules 
of  law  to  particular  cases,  but  for  each  new  case  affirmed 
a  new  law,  and  only  by  the  method  of  successive  and 
gradual  generalization  of  the  particular  decisions  in  time 
reached  general  rules,  rules  not  yet  presenting  at  first  a 
high  degree  of  generality,  but  comparatively  narrow 
casuistical  rules. 

Of  whatever  sort  they  are,  general  legal  rules  once  ac- 
cepted, necessarily  control  subjective  rights.  The  for- 
mula for  determining  every  such  right  takes  the  form  of 
a  syllogism.  The  legal  rule  serves  as  major  premise,  the 
different  interests  controlled  by  it  as  the  minor  one,  and 
the  statement  of  rights  and  obligations  which  results 
forms  the  conclusion. 

l"Pravo"  (law)  in  Russian,  like  droit  in  French  and  jus  in  Latin,  and  Recht 
in  German,  has  the  double  meaning  of  "law"  and  "right." 


OBJECTIVE  AND  SUBJECTIVE  169 


Section  23.    Juridical  Norms.    Orders 

SAVIGNY.     System.     81.     §25. 

THOEL.     Einleitung,  §34-39. 

THON.     Rechtsnorm  und  subjektives  Recht,  §345. 

BIERLING.     Zur  Kritik  der  Grundbegriffe  II,  307. 

ZITELMANN.     Irrthum  und  Rechtsgeschaft,  1879.     s.  200-229. 

Juridical  norms,  as  in  general  all  others,  are  require- 
ments to  do  something,  and  in  this  sense,  orders.  Being 
orders,  they  are  not  permissions,  enunciations,  or  indica- 
tions. They  always  command.  They  indicate  what  is  to 
be  done  and  in  what  way  it  is  necessary  to  proceed  for 
the  accomplishment  of  an  act  in  order  to  avoid  a  clash  of 
interests. 

It  is  by  no  means  necessary  to  conclude  from  this,  as  is 
sometimes  done,  that  all  juridical  norms  are  the  work  of 
a  conscious  will  or  of  the  authority  of  some  man.  The 
rule  as  to  what  is  to  be  done  contains,  certainly,  a  com- 
mand, but  it  is  not  an  order  emanating  from  an  indi- 
vidual will.  Thus,  we  know  that  technical  rules  are  not 
the  work  of  any  man,  but  the  natural  consequences  of 
the  existence  of  certain  natural  laws,  just  as  moral  rules, 
to  the  extent  that  they  are  not  divinely  revealed,  are 
not  established  by  any  one's  will,  but  result  from  a  moral 
sentiment.  This  is  equally  the  case  with  juridical  laws. 
To  the  degree  that  they  present  themselves  at  first  under 
the  form  of  customs,  they  are  not  acts  of  any  ordaining 
will. 

Zitelmann,  who  contests  the  imperative  character  of 
legal  rules,  as  dispositions  established  by  volition,  is 
clearly  right  on  this  point,  but  he  goes  too  far  when  he 
affirms  that  these  legal  rules,  even  in  their  content,  are 
not  commands,  but  only  judgments,  as  to  relations  of 
cause  and  effect  between  juridical  facts.  He  himself  ac- 


170  THEORY   OF   LAW 

knowledges,  however,  that  a  legal  rule  is  a  hypothetic 
judgment  as  to  what  is  to  be  done;  but  every  judgment 
of  this  sort  constitutes  in  itself  naturally  a  command. 
Moreover,  the  relation  of  juridical  acts,  determined  by 
juridical  norms,  is  not  one  of  fact  and  necessity.  Such  a 
relation  will  only  be  recognized  by  those  men  who  con- 
sider it  as  obligatory. 

Legal  rules  do  not  carry  permission,  definition,  nor 
enumeration.  Sometimes  the  articles  of  a  law  take  such 
a  form  as  to  lead  to  the  belief  that  there  are  other  than 
ordaining  rules  and  such  as  to  produce  a  belief  in  the 
existence  of  rules  which  authorize  or  which  define.  This 
opinion  has  had  followers  even  amongst  Roman  jurists, 
as  Modestinus,  who  distinguished  four  categories  of  law. 
Legis  virtus,  said  he,  est  imperare,  vetare,  permittere,  punire. 
But  even  then  his  definition  was  questioned  and  Cicero, 
for  example,  admitted  the  existence  only  of  ordaining 
and  prohibiting  laws.  Legem  esse  csternam  (De  legibus, 
II,  c.  4). 

Modestinus'  classification  is  evidently  wrong.  We  can- 
not, indeed,  put  imperare,  vetare,  permittere  and  punire 
in  the  same  rank.  Penal  laws  which  indicate  pun- 
ishment do  not  in  truth  contain  the  order  for  punish- 
ing the  criminals.  That  belongs  to  the  tribunal.  For 
a  long  time,  however,  Modestinus'  definition  prevailed. 
Savigny  gave  it  a  decisive  blow  and  showed  the  impossi- 
bility of  setting  in  a  separate  group  the  rules  for  punish- 
ment. On  the  contrary,  a  good  many  jurists  have 
always  admitted  the  existence  of  rules  which  author- 
ize, and  even  of  those  which  define,  as  was  done  by 
Thol. 

It  is  in  the  meanwhile  difficult  to  recognize,  in  the 
form  of  these  different  rules,  anything  which  modifies 
them  essentially.  If  in  a  legislative  act  we  find  an  arti- 
cle exhibiting  the  form  of  a  definition,  nevertheless,  in 
its  actual  application  this  act  is  nothing  but  a  command. 


OBJECTIVE   AND   SUBJECTIVE  171 

So,  if  law  gives  the  definition  of  a  contract  or  a  crime, 
there  is  here  only  an  order  for  connecting  with  human 
actions  constituting  a  contract  or  a  crime,  the  juridical 
consequences  of  such  contract  or  crime. 

It  is  important  to  observe  here  that  the  juridical  rule  is 
not  expressed  by  a  single  article  but  in  several.  One  de- 
fines, the  others  indicate  the  juridical  consequences  con- 
nected with  the  acts  previously  defined. 

Sometimes  it  happens  that  the  legislator  employs  the 
descriptive  form  instead  of  the  imperative  one.  Instead, 
for  example,  of  saying  that  some  person  ought  to  do  this, 
he  says  that  the  person  does  do  it.  So,  for  example,  ar- 
ticle 47  of  the  Fundamental  Laws  declares  that  "The 
government  of  the  Russian  Empire  rests  upon  the  solid 
basis  of  laws."  This  means  undoubtedly  that  it  ought 
to  be  so.  Otherwise  the  legislator  would  appear  to  go  so 
far  as  to  deny  the  possibility,  even,  of  failure  of  compli- 
ance with  his  rule.  When  the  law  describes  the  person- 
nel and  the  organization  of  institutions  and  state  services, 
it  says  that  these  subdivisions  of  the  administration  have 
at  their  head  certain  persons,  that  they  possess  a  certain 
organization.  This  means,  in  fact,  that  there  ought  to 
be  such  persons  and  that  such  an  organization  is  fixed  by 
law.  The  replacing  of  the  imperative  form  by  the  de- 
scriptive is  explained  either  simply  by  greater  conven- 
ience of  expression,  or  by  a  briefer  turn  of  phrase ;  some- 
times, also,  by  the  desire  of  impressing  upon  the  dispo- 
sition created  by  law  a  more  absolute  character.  The 
imperative  form,  in  fact,  would  appear  to  suppose  the  pos- 
sibility of  a  reality  not  corresponding  to  that  required. 
The  descriptive  form,  on  the  contrary,  which  sets  forth 
that  which  ought  to  be,  as  already  existing,  excludes  even 
the  idea  of  a  reality  different  from  that  indicated  in  the 
legal  formula. 

The  existence  of  rules  carrying  a  permission  is  warmly 
disputed.     The  partisans  of  this  category  of  rules  assert 


172  THEORY  OF  LAW 

the  existence  of  articles  of  this  nature  in  all  legislation. 
They  add  some  considerations  of  a  more  general  theoretic 
character.  In  all  legislation  we  meet,  in  fact,  quite  fre- 
quently with  articles  having  the  character  of  permission 
which  may  be  divided  into  four  distinct  groups.  The 
first  group  of  articles  of  this  kind  is  explained  historically. 
They  are  those  which  indicate  the  suppression  of  a  pro- 
hibitive rule  formerly  existing.  The  suppression  of  a 
prohibition  is  naturally  a  permission,  but  we  must  ob- 
serve that  it  institutes  no  new  rule,  only  suppresses  an 
older  one. 

Then  there  are  some  articles  in  which  the  authoriza- 
tion is  the  consequence  of  the  terms  of  the  formula. 
They  serve  in  general  as  an  introduction  to  distinct  pro- 
hibitions, limiting  the  scope  of  these  latter  by  certain  per- 
missions. 

After  an  article  like  this,  "All  the  world  is  authorized 
to,  or  may,"  follows  a  series  of  articles  enumerating  the 
exceptions  to  this  general  permission.  Evidently  the 
juridical  rule  is  contained  in  the  special  prohibition  and 
not  in  the  general  authorization.  If  we  suppose  the  au- 
thorization suppressed,  there  would  be  no  change  in  the 
legal  rule;  only  its  form  would  require  some  modification. 
To  say  that  an  act  is  permitted  except  in  some  particular 
case  or  to  say  that  in  that  case  it  is  forbidden,  is  abso- 
lutely the  same  thing. 

The  character  of  the  articles  which  compose  the  third 
group  is  more  disputable.  In  the  laws  which  organize  the 
public  service  of  a  state  we  meet  frequently  with 
articles  providing  that  "there  can  be  taken  such  a 
measure  or  such  other  one."1  In  reality  these  articles 
are  not  rules  carrying  permissions.  Legislation  in 
organizing  a  public  service,  that  of  justice  for  example, 


1  The  character  of  these  provisions  raises  the  more  doubt  because  they  are 
generally  intercalated  between  others  which  contain  unquestionable  com- 
mands. 


OBJECTIVE  AND  SUBJECTIVE  173 

imposes  upon  it  usually  the  absolute  duty  of  doing  some 
certain  act  if  certain  facts  are  presented.  The  tribunal 
cannot  set  aside  such  a  rule.  It  is  not  permitted  to  inquire 
whether  the  application  of  this  rule  in  the  given  cir- 
cumstances is  indispensable  or  even  useful.  Sometimes, 
on  the  contrary,  the  law  leaves  to  the  tribunal  itself  the 
duty  of  ascertaining  according  to  the  circumstances  the 
necessity  for  applying  the  measure.  Does  this  mean 
that  the  tribunal  can  according  to  its  liking  apply  it 
or  not?  By  no  means,  for  if  the  necessity  or  utility  of 
the  measure  is  recognized,  the  tribunal  is  bound  to 
apply  it. 

Such  a  law,  then,  is  not  an  authorization  to  the 
tribunal;  on  the  contrary,  it  imposes  a  double  duty,  the 
estimating  of  the  need  of  the  measure,  and  the  applying 
of  it,  if  such  need  is  recognized. 

If  the  law  says  that  in  certain  cases  the  police  may 
call  the  army  to  assistance,  this  means  merely  that  if 
the  police  recognize  the  utility  of  such  a  measure,  its 
duty  is  to  employ  it. 

The  fourth  group  is  made  up  of  rules  by  which  alter- 
native obligations  are  created,  when  no  direct  command 
is  given,  but  the  choice  is  left  of  doing  some  one  of 
several  given  acts. 

Here,  then,  it  is  a  matter  of  course  that  the  alterna- 
tive order  keeps  its  character  of  a  command  and  the 
alternative  rules  are  distinctly  imperative  ones.  The 
permission  consists  wholly  in  the  fact  that  choice 
between  the  performing  of  several  obligations  is  author- 
ized. The  juridical  force  of  these  rules  consists  not  in 
the  permitting  of  a  choice,  but  in  forbidding  the  making 
of  a  choice  outside  of  the  established  alternative. 

So  all  the  examples  given  of  rules  asserted  to  carry 
permissions  are  without  force.  It  remains  still  to 
examine  one  proof  furnished  to  support  the  existence 
of  these  rules  of  permission.  It  is  of  a  more  general 


174  THEORY  OF  LAW 

character  than  those  just  examined.  Some  have  gone 
so  far  as  to  deny  the  general  rule  that  that  which  is  not 
forbidden  is  permitted.  They  have  set  forth  that  not 
to  forbid  is  not  the  same  thing  as  to  permit.  The 
absence  of  prohibition  does  not  give  a  right  to  perform 
the  unforbidden  action.  Permission  given  by  law  to 
perform  an  act  establishes,  on  the  other  hand,  a  right. 

To  answer  this  it  is  necessary  to  establish  first  clearly 
the  meaning  of  the  maxim,  "Everything  not  forbidden 
is  permitted."  If  we  consider  permission  as  equivalent 
to  the  creation  of  a  right,  man  has  a  right  to  do  every 
permitted  act  and  undoubtedly  what  is  not  forbidden 
cannot  on  that  account  be  considered  as  permitted.  In 
making  no  prohibition,  no  right  was  created,  because  a 
right,  as  we  shall  see  later,  supposes  always  a  corre- 
sponding obligation,  and  merely  from  the  fact  that  the 
law  does  not  forbid  an  act,  we  should  not  conclude  that 
any  obligation  is  imposed  by  such  fact.  The  law  does 
not  forbid  anybody  to  look  at  the  setting  sun,  but  this 
does  not  mean  that  I  am  compelled  to  place  my  house 
so  as  not  to  interfere  with  another's  view  of  the  west. 
Permission  to  one  does  not  mean  obligation  upon 
another.  A  permitted  act  can  become  a  right  only 
when  everything  is  forbidden  which  might  interfere 
with  that  permitted  action,  because  it  is  only  on  this 
condition  that  any  corresponding  obligation  arises.  So 
a  right  can  find  birth  only  in  a  prohibition  and  not  in  a 
mere  permission.1 

We  conclude,  then,  that  all  legal  rules  are  commands, 
but  commands  may  take  various  forms.  Every  limita- 
tion upon  the  realization  of  interests  which  are  in  con- 
flict may  be  of  two  kinds.  We  can  reduce  them  either 
to  the  prohibition  of  acts  which  prevent  the  perform- 
ance of  some  act,  or  to  the  requirement  of  the  per- 

1    A  legal  right,  then,  is  not  merely  capacity  to  do  an  act,  but  capacity  aided 
by  law  through  establishing  an  obligation. — Translator. 


OBJECTIVE  AND  SUBJECTIVE  175 

formance  of  the  acts  necessary  to  the  realization  of  such 
interests.  So  one  may  say  that  the  command  in  a  legal 
rule  may  be  either  positive  or  negative,  an  order  properly 
so  called,  or  a  prohibition.  It  is  true  that  every  com- 
mand may  be  expressed  under  the  form  of  a  prohibition 
and  every  prohibition  under  the  form  of  a  command. 
To  direct  the  performance  of  an  action  is  the  same  thing 
as  to  forbid  its  non-accomplishment.  This  does  not 
destroy,  however,  the  importance  of  the  distinction 
between  positive  and  negative  rules,  between  com- 
mands and  prohibitions. 

This  difference  is  manifested  especially  in  the  obliga- 
tions which  each  creates.  Orders  produce  obligations 
to  do,  positive  obligations;  prohibitions  engender  obliga- 
tions to  abstain,  or  negative  ones.  From  this  distinc- 
tion among  obligations  depends,  as  we  have  already 
seen,  the  coercive  effectuation  of  commands,  and  all 
prohibitive  rules  admit  of  coercive  realization.  Rules 
which  contain  the  injunction  to  perform  a  positive  act 
are  susceptible  of  coercive  realization  only  when  they 
create  no  personal  obligation. 


176  THEORY  OF  LAW 


Section  24.    Elements  of  the  Legal  Norm 

TSITOVICH.     Course  in  Civil  Law.     I.     p.  45. 
BINDING.     Normen.     I.     p.  74. 

Juridical  norms  are  not  simply  commands,  they  are 
at  the  same  time  conditional  commands.  The  limits 
given  for  the  realization  of  an  act  are  variable,  and  the 
rules  arising  from  the  realization  of  this  act  vary  accord- 
ing as  this  or  that  interest,  more  or  less  important,  opposes 
such  realization. 

So  the  explanation  of  a  legal  norm  depends  upon  the 
presence  of  certain  facts.  There  are  no  absolute  juridi- 
cal norms.  Even  the  rule  absolute  from  the  moral 
point  of  view,  like  the  provision  against  attacking  a 
human  life,  is  not  absolute  as  a  legal  norm.  The  greater 
number  of  human  interests  ought,  it  is  true,  to  yield  to 
the  interest  of  preserving  life,  but  not  all.  In  the  case 
of  lawful  defense,  war,  and  in  the  application  of  penal 
laws,  to  kill  is  permitted  by  law.  Legal  rules,  then,  are 
conditional  rules.  Each  one  consists  naturally  in  the 
definition  of  the  conditions  for  applying  the  rule  and 
in  the  exposition  of  the  rule  itself.  The  first  of  these 
two  elements  is  styled  hypothesis  or  supposition,  and 
the  second,  disposition  or  order.  Such  a  legal  rule  can 
be  expressed  in  the  following  fashion:  "If  .  .  .  then  ..." 
Example:  "If  the  deceased  has  several  sons,  then  his 
goods  shall  be  divided  into  equal  parts."  "If  any  one 
commits  a  theft,  then  he  is  punishable  by  imprison- 
ment." 

Each  article  of  the  law  does  not  always  necessarily 
contain  these  two  elements.  The  rule  may  be  set  out 
in  several  articles.  One  article  may  contain  the  hypoth- 
esis and  another  the  disposition.  So  it  happens  that 
the  law  may  not  contain  an  express  declaration  of  its 


OBJECTIVE   AND   SUBJECTIVE  177 

conditionality.  Instead  of:  "If  ...  then  .  .  ."  we  can 
use  another  formula,  "He  who  does  this  or  that  is  pun- 
ishable by  .  .  .";  or,  better,  "In  such  case  the  goods 
which  .  .  .  shall  return  to  ..." 

But  all  these  formulas  come  finally  to,  "If  .  .  . 
then  ..."  That  is  the  fundamental  formula  to  which 
the  others  can  be  reduced,  while  the  other  formulas 
cannot  be  applied  in  every  case.  Thus,  the  laws  which 
regulate  the  descent  of  estates  cannot  be  expressed  by 
the  formula,  "He  who  shall  do  such  act  shall  have  the 
right  ..."  The  command  being  the  form  common  to 
all  juridical  norms,  the  hypothesis  and  disposition  are 
their  universal  elements. 

These  two  elements  may  take  different  forms.  The 
hypothesis  can  in  effect  be  expressed  under  a  general 
and  abstract  form,  or  under  a  concrete,  casuistical,  one. 

The  circumstances  on  which  the  application  of  the 
norm  depends  may  be  the  result  of  general  principles 
and  the  hypothesis  will  be  under  an  abstract  form,  or  on  the 
other  hand,  they  may  have  their  origin  in  individual  in- 
stances and  the  hypothesis  will  take  a  casuistical  form. 

The  thought  in  all  primitive  peoples  assumes  the 
concrete  form.  Their  legal  rules,  consequently,  are 
clothed  at  first  in  concrete  forms  applied  to  each  par- 
ticular case  and  it  is  only  little  by  little,  in  generalizing 
themselves,  that  these  concrete  forms  become  abstract 
and  general  definitions. 

The  casuistical  form  is  defective,  for  it  causes  a 
multiplicity  of  rules  and  does  not  adapt  itself  to  the 
generality  of  legal  definitions. 

With  casuistical  rules  each  case  demands  for  itself  a 
separate  rule  and  meanwhile,  as  the  diversity  of  pos- 
sible cases  is  infinite,  the  casuistical  rules,  however  great 
their  number,  cannot  always  include  every  case  which 
life  presents. 

The  abstract  form,  on  the  contrary,  has  great  advan- 


178  THEORY  OF  LAW 

tages.  In  a  single  definition  all  the  homogeneous  cases 
are  indicated  and  combined.  It  requires,  then,  only  a 
quite  moderate  number  of  rules,  which  at  the  same 
time  are  fully  comprehensive. 

It  presents,  however,  some  inconveniences.  In  the 
first  place,  the  abstract  form,  because  of  its  too  general 
character,  leads  to  a  certain  vagueness  in  the  applica- 
tion. There  is  no  embarrassment  as  to  the  casuistical 
rule  in  knowing  whether  or  not  it  is  to  be  applied  to  a 
given  case.  With  the  abstract  form  it  is  not  always 
so,  and  a  large  field  is  sometimes  opened  for  contra- 
dictory interpretations. 

Besides  the  differences  which  we  have  just  indicated 
among  the  hypotheses,  sometimes  casuistical  and  some- 
times abstract,  there  are  others  which  arise  from  differ- 
ent degrees  of  definiteness  in  the  hypotheses.  These 
hypotheses  may  be,  indeed,  absolutely  determined  or 
undetermined  or  may  be  relatively  determined. 

A  hypothesis  is  said  to  be  absolutely  determined 
when  the  facts  on  which  it  depends  are  distinctly  indi- 
cated in  its  own  form,  when  we  indicate,  for  example, 
that  every  contract  involving  an  amount  greater  than 
five  rubles  must  be  upon  stamped  paper. 

There  is  an  absolutely  indeterminate  hypothesis  when 
the  rule  comprises  no  mention  of  the  facts  on  which  its 
application  depends,  but  places  upon  each  agent  of 
authority  the  necessity  of  stating  them.  For  example, 
if  the  law  permits  "in  case  of  necessity"  the  taking  of 
such  or  such  a  measure.  Here  the  hypothesis  is  abso- 
lutely indeterminate. 

When  will  the  condition  arise?  On  what  terms? 
The  law  does  not  say;  in  this  last  case  the  agent  charged 
with  accomplishing  the  rule  has  a  power  which  is  called 
discretionary.  He  can  act,  taking  for  a  guide  certain 
considerations,  but  he  is  only  bound  by  the  formal 
restrictions  of  the  law. 


OBJECTIVE  AND  SUBJECTIVE  179 

Lastly,  we  say  that  the  hypothesis  is  relatively  deter- 
mined when  the  application  of  the  law  is  subjected  to 
certain  conditions;  for  example,  if  certain  measures  are 
prescribed  only  in  case  of  an  epidemic,  and  in  such 
case  not  absolutely,  but  only  under  condition  that  these 
measures  shall  be  recognized  as  necessary  by  com- 
petent authority.  The  rule  may  then,  under  this 
hypothesis,  not  be  applied  at  all,  and  if  an  epidemic 
supervenes,  it  will  be  applied  only  if  it  is  recognized  as 
necessary. 

Rules  with  the  hypothesis  relatively  or  absolutely 
undetermined  are  found  often  in  administrative  law 
and  also  in  procedure.  The  courts  have,  in  fact,  a 
quite  extensive  discretionary  power. 

The  necessity  for  the  application  of  these  rules  depends 
on  circumstances  so  varied  that  it  is  unavoidable  to 
give  to  administrations  and  courts  of  justice  some  dis- 
cretionary power. 

Concrete  restrictions,  unchangeable  at  law,  must  be 
replaced  by  definitions  which  are  elastic,  so  to  speak, 
adapting  themselves  readily  to  the  multiplicity  and 
variability  of  facts.  These  definitions  are  given  by 
judges  and  administrators. 

The  distinction  between  casuistical  and  abstract  forms 
is  not  applicable  to  the  disposition.  This  latter  con- 
tains, in  fact,  a  rule,  a  command,  and  contains  nothing 
else. 

We  distinguish  several  kinds  of  "dispositions" 
according  to  the  degree  of  determination  of  the  com- 
mands which  they  contain. 

Like  the  hypothesis,  the  disposition  may  be  abso- 
lutely determined,  absolutely  indeterminate,  or  rela- 
tively determined. 

In  the  disposition  absolutely  determined,  the  com- 
mand is  a  categorical  rule.  No  discretion  or  latitude  is 
given  to  him  who  executes  it.  Such,  for  example,  are 


180  THEORY  OF  LAW 

dispositions  of  the  kind  which  indicate  the  date  when  a 
bill  of  exchange  is  outlawed,  or  those  which  indicate  the 
eldest  son  as  the  successor  to  a  throne.  These  are  cate- 
gorical commands,  leaving  no  option  to  the  one  charged 
with  their  execution. 

Dispositions  of  an  indeterminate  form  are,  on  the 
contrary,  those  which  leave  to  the  one  who  is  to  apply 
them  a  discretion  to  moderate  their  application  or  even 
not  apply  them  at  all.  For  examples  we  will  cite  the 
texts  which  authorize  the  police  to  take  some  measure 
deemed  necessary  in  case  of  a  riot  for  the  re-establish- 
ment of  order,  or  again,  in  case  of  epidemic,  all  the 
useful  measures  for  arresting  the  spread  of  contagion. 
All  the  dispositions  of  the  criminal  code  are  indeter- 
minate. Criminal  laws,  in  fact,  are  applied  by  tribunals 
which  have  the  right  to  choose  between  laws. 

We  observe  in  all  our  examples  that  the  exact  and  im- 
mediate application  of  the  rule  is  confided  to  some  organ 
of  government,  or  of  the  police,  or  of  the  court.  These 
agencies  are  bound  to  fulfill  this  function  and  at  need 
can  be  constrained  to  do  so.  There  are  rules  also  which 
require  some  given  individual  to  enforce  them.  Ranged 
in  this  class  should  be  the  rule  which  requires  that 
goods  of  a  defunct  shall  belong  to  a  devisee  indicated 
in  the  will  of  the  deceased,  or  that  which  in  a  contract 
leaves  to  parties  the  privilege  of  arranging  details. 
Doubtless  there  are  fixed  limits  to  the  rights  of  the 
devisee  .or  parties  to  the  contract,  but  there  is,  none  the 
less,  a  large  share  in  the  application  of  the  rule  confided 
to  them. 

Experience  has  shown  that  parties  to  a  contract  do 
not  employ  very  freely  the  authority  which  the  law 
gives  them  of  arranging  their  mutual  relations,  and  the 
law  usually  fixes  some  general  rules  which  operate  by 
the  side  of  those  which  the  contracting  persons  estab- 
lish for  themselves.  If  these  Jast  do  not  indicate  in  the 


OBJECTIVE  AND  SUBJECTIVE  181 

contract  all  the  details  of  its  application,  it  will  be  neces- 
sary to  refer  to  those  which  the  law  has  established. 
These  rules,  which  apply  only  in  cases  where  the  inter- 
ested persons  have  fixed  none  themselves,  might  be 
called  dispositive  rules  and  the  others  which  apply  in 
every  case,  prescriptive  rules.  Rennenkampf  has  re- 
cently proposed  the  name  "ordinative"  instead  of  dis- 
positive, and  "imperative"  instead  of  prescriptive, 
respectively,  for  such  rules;  but  his  names  have  not 
prevailed. 

The  relatively  determinate  disposition  may  have  two 
forms.  It  can  fix  merely  the  extreme  limits  within 
which  the  competent  authority,  or  the  persons  inter- 
ested, may  choose.  For  instance,  when  the  maximum 
or  the  minimum  of  a  reparation  is  fixed,  or  the  maximum 
of  delay  in  a  contract  of  hiring,  leaving  to  the  parties 
the  right  of  stipulating  for  a  shorter  one.  It  can  also 
take  an  alternative  form,  limiting  itself  to  indicating 
several  measures  between  which  choice  must  be  made 
in  applying  the  rule.  For  example,  the  court  has  often 
the  choice  between  requiring  a  reparation  to  be  made 
or  the  imprisonment  of  the  guilty  party.  The  trial 
judge  may  have  a  discretion  to  order  an  imprisonment 
or  to  satisfy  himself  with  a  reprimand. 

Individuals  themselves  have  quite  frequently  to  apply 
dispositions  of  this  kind.  The  victim  of  a  crime,  for 
example,  can  institute  proceedings  for  damages  before 
a  civil  tribunal  or  a  prosecution  before  the  criminal 
jurisdiction,  just  as,  also,  one  who  has  to  complain  of  a 
violation  of  a  contract  with  the  treasury  can  take  his 
demands  before  the  administrative,  or  before  the  judi- 
cial, tribunals. 

All  which  has  just  been  said  as  to  juridical  norms  and 
the  elements  which  compose  them  is  absolutely  general. 
The  hypothesis  and  the  disposition  are  indispensable 
elements  in  every  legal  norm.  They  are,  of  course,  in 


182  THEORY  OP  LAW 

every  penal  law;  but  they  take  then  some  particular 
names  because  of  the  special  situation  occupied  by 
penal  laws  in  the  general  system.  Each  penal  law  is 
composed  of  two  parts;  in  the  first  are  indicated  the 
acts,  the  facts  which  constitute  the  crime  or  delict,  and 
in  the  second  are  the  punishments. 

All  the  formulas  for  penal  laws  can  be  reduced  to  this 
one:  "If  any  one  commits  such  or  such  an  action,  he 
shall  suffer  such  or  such  a  penalty." 

In  our  modern  legislation  we  do  not  usually  indicate 
that  all  forbidden  action  is  to  be  punished.  This  is 
understood.  It  is  the  natural  conclusion  resulting  from 
the  penalty  incurred  by  the  doer  of  the  act. 

Also,  in  a  penal  law  the  first  part  contains,  besides 
the  indication  of  the  facts  constituting  the  offense,  the 
disposition  of  another  rule  which  forbids  the  criminal 
action,  and  this  is  why  criminalists  reserve  this  word 
"disposition"  for  that  first  part,  while  they  denominate 
as  "sanction"  the  second  part  of  the  penal  rule.  The 
penalty  constitutes  the  sanction  for  the  observance  of 
the  legal  rule,  since  it  can  be  incurred  only  as  that  law 
is  violated. 


OBJECTIVE  AND  SUBJECTIVE  183 


Section  25.     The  Matter  of  Juridical  Norms 

Because  of  the  great  diversity  of  interests  at  play  and 
also  of  the  numerous  juridical  principles  by  which  they 
are  controlled,  the  matter  of  legal  rules  is  extremely 
varied.  The  detailed  knowledge  of  them  is  nothing 
less  than  that  of  all  branches  of  positive  law,  of  law 
studied  in  its  historical  evolution  and  in  comparative 
legislation.  We  shall  limit  ourselves  here  to  some  gen- 
eral rules  and  to  the  summary  indication  of  the  funda- 
mental categories  into  which  all  the  matter  of  juridical 
norms  may  be  reduced.  Such  a  generalization  is 
possible,  because  all  human  interests,  despite  their 
great  diversity,  are  on  the  whole  subjected  to  identical 
conditions. 

To  reach  a  proposed  end,  man  employs  forces.  Thanks 
to  these,  he  produces  changes  in  the  conditions  of  his 
existence,  of  his  individual  well-being.  The  forces 
which  man  employs  for  the  satisfaction  of  his  needs 
and  pleasures  are  limited.  Meanwhile,  the  man  cannot 
attain  his  ends  without  a  certain  exhaustion  of  these 
forces.  The  struggle  between  individuals  thus  appears 
to  us  as  a  struggle  for  the  possession  of  those  forces 
which  alone  can  assure  to  individuals  the  realiza- 
tion of  their  projects.  Legal  rules  have  precisely  for 
their  end  the  regulation  of  the  human  struggle  for  the 
control  of  these  forces. 

Laws,  in  fact,  enjoin  upon  the  man,  first,  not  to 
employ  for  the  realization  of  his  interests  other  forces 
than  those  which  the  law  recognizes  as  good;  second, 
the  performing  only  of  acts  leaving  possible  for  other 
men  the  utilization  of  forces  corresponding  in  their 
limits  with  those  assigned  by  law. 

Legal  rules,  then,  have  for  their  end  the  avoiding  of 


184  THEORY   OP  LAW 

the  shock  of  the  collision  of  individual  interests;  they 
are  established  with  a  view  to  order. 

As  the  relations  between  the  different  interests  under 
consideration  are  not  the  same,  the  content  of  legal 
rules,  while  keeping  certain  general  traits,  varies  also. 
We  can  bring  into  three  groups  these  different  con- 
flicts of  interest:  first,  the  conflict  of  interests  absolutely 
equal  belonging  to  different  persons;  second,  the  conflict 
of  equivalent  but  unequal  interests;  and  third,  the 
conflict  of  interests  which  are  not  equivalent. 

The  first  group  presents  some  interests  offering  this 
peculiarity,  that  it  is  quite  difficult  to  assign  to  them 
an  exact  limit.  Since  the  two  interests  in  view  are 
absolutely  equal,  there  is  no  reason  to  prefer  one  to  the 
other.  Their  realization,  therefore,  should  be  admitted 
in  an  exactly  equal  degree.  If,  on  the  other  hand,  the 
realization  of  only  one  of  them  is  possible,  then  the 
choice  between  the  two  is  left  absolutely  to  chance.  We 
find  frequent  application  of  this  rule.  Thus  we  accord 
the  use  of  a  thing  to  the  party  who  first  takes  posses- 
sion, according  to  the  rule,  Qui,  prior  tempore,  potior  est 
jure.  In  the  same  way  in  case  of  danger  incurred  by 
two  persons,  if  the  safety  of  one  can  be  obtained  only 
by  the  destruction  of  the  other,  the  issue  is  left  to  brute 
force  as  between  the  two.  Sometimes  the  law  is  used 
to  decide  between  the  interests  in  conflict. 

The  unequal  but  equivalent  interests  may  be  com- 
patible or  may  not.  Compatible  interests  are  delimited 
as  in  the  case  we  have  just  examined,  by  applying  the 
rule  of  perfect  equality. 

We  must  observe  always  a  difference.  If  in  the  case 
of  absolutely  equal  interests  we  were  to  apply  perfect 
equality,  it  would  be  arithmetical  equality.  In  the 
case  we  are  now  concerned  with,  however,  it  is  propor- 
tional, geometric  equality  which  is  required.  The  forces 
are  distributed  between  the  interests  which  ought  to  be 


OBJECTIVE  AND  SUBJECTIVE  185 

delimited  in  a  fashion  proportional  to  the  quantity 
which  is  necessary  for  their  realization  as  regards  each 
other. 

In  the  case  of  incompatible  equivalent  interests  the 
choice  can  be  left  merely  to  chance.  These  interests 
being  different,  it  is  easy,  as  a  matter  of  fact,  to  find 
reasons  for  a  choice  between  them.  It  will  be,  for 
example,  the  interest  of  the  majority  or  that  of  the 
minority,  or  the  one  will  be  older  than  the  other  and 
already  recognized  by  usage,  and  will  be  preferred  for 
this  reason. 

This  difference  between  the  interests  may  arise,  either 
from  the  subjects,  that  is,  the  bearers  of  the  interests, 
or  from  their  matter,  of  what  sort  they  are.  The 
organization  of  society  into  classes  is  an  application  of 
this  difference  of  interests,  as  to  the  subject.  It  happens 
also  that  general  interests  are  naturally  preferred  to 
individual  ones.  Interests  of  the  state,  for  example, 
are  estimated  higher  than  those  of  a  province,  or  of  a 
commune,  and  these  latter  are  given  consideration 
before  those  of  an  individual.  Even  in  this  last  case  it 
may  happen  that  the  interests  of  one  should  be  pre- 
ferred to  those  of  another.  Thus,  in  the  case  of  viola- 
tion of  a  law,  the  interests  of  the  just  are  preferred  to 
those  of  the  wrongdoer.  When  it  is  necessary  to.  choose 
between  the  interests  of  the  mother  and  those  of  an 
unborn  infant,  the  mother's  are  preferred.  The  mother 
exists  already;  the  infant  has  only  a  problematic  exist- 
ence. It  is  plain  that  the  importance  attached  to  a 
certain  interest  depends  upon  the  moral  ideas  domi- 
nant in  society. 

Let  us  observe  besides,  that  in  the  application  of 
legal  norms,  general  interests,  even  for  a  particular  case 
which  concerns  only  a  conflict  between  individuals,  are 
taken  into  consideration  merely  for  the  reason  that,  as 
we  have  alreadv  seen,  laws  are  established  with  a  view 


186  THEORY  OF  LAW 

to  order.  Peace  being  a  very  important  general  inter- 
est, it  is  in  the  interest  of  peace  for  the  most  part  that 
the  interests  in  play  will  be  regulated.  Hobbes  was  not 
wrong  in  considering  as  a  fundamental  law  the  Roman 
rule,  "Pax  qu&renda  est"  and  Herbart  gave  as  the 
origin  of  all  la,w  the  necessity  of  settling  conflict.  How- 
ever it  is  obtained,  peace  is  always  an  advantage.  It 
procures  an  economy  of  force  which  in  its  absence  would 
be  absorbed  in  the  conflict.  It  permits  the  regarding  of 
the  future  with  confidence,  while  on  the  other  hand,  the 
issue  of  a  struggle  is  always  uncertain. 

So,  in  view  of  the  great  advantages  which  peace 
offers,  when  we  are  controlling  the  interests  under  con- 
sideration, whatever  they  may  be,  we  give  preference 
to  the  adjustment  which  contributes  most  to  the  estab- 
lishment of  peace.  For  this  reason  law  in  general  is 
disposed  to  preserve  interests  already  existing  and 
applies  the  rule  "Beati  possidentes"  For  this  reason, 
too,  effective  possession  if  it  lasts  long  enough,  assures 
to  the  possessor  property  in  the  object  and  turns  into  a 
right  in  him.  Property  can  be  acquired  even  by  unlaw- 
ful possession,  provided  it  be  old  enough. 

Besides  this  very  general  interest,  which  precedes  the 
others  and  which  peace  offers  in  regulating  the  interests 
at  play,  there  are  others  which,  without  having  so 
general  a  value,  are  also  applied,  as  the  interest  of  indi- 
vidual liberty  which  plays  such  a  great  role  in  modern 
law.  Because  of  it,  modern  law  gives  preference  to  the 
solutions  best  compatible  with  individual  liberty.  It  is 
needless  to  say  that  other  collective  interests  are  set  in 
play  by  the  conflicts  between  individuals.  Their  greater 
or  less  importance  affects  the  solution  adopted  by  the 
legislator. 


OBJECTIVE  AND  SUBJECTIVE  187 


Section  26.     The  Sanction  of  Legal  Rules 

Legal  rules  as  orders  addressed  to  the  conscious  wills 
of  men  are  not  always  observed;  so  they  have  need  of 
special  guaranties  for  their  enforcement. 

It  is  necessary  to  constrain  the  man  to  the  observance 
of  legal  rules;  without  such  constraint  the  rules  would 
remain  a  dead  letter.  These  means  of  constraint  are 
"sanctions."  In  what  do  these  sanctions  consist?  Each 
violation  of  a  legal  rule  gives  birth  to  a  new  clash  of 
contradictory  interests.  On  the  one  side  we  find  the 
interest  of  him  who  is  injured  by  the  violation  of  law. 
He  wants  compensation.  On  the  other  side  is  found 
the  interest  of  the  wrongdoer,  the  author  of  the  harm. 
Frequently,  too,  he  can  invoke  some  rights  for  his 
defence. 

We  can  say  that  the  general  consequence  of  violation 
of  any  legal  norm  is  the  birth  of  a  new  rule  created  to 
regulate  the  interests  brought  into  presence  as  a  result 
of  the  violation  of  law.  Let  us  examine  how  these 
interests  are  regulated. 

Law  is  violated  generally  because  it  interferes  with  us 
in  the  accomplishment  of  some  act,  because  it  prevents 
the  realization  of  some  of  our  interests. 

The  first  means  for  producing  observance  of  legal 
rules  is  to  prevent  the  actions  which  violate  those  rules 
from  attaining  their  end.  Such  acts  are  to  be  recog- 
nized as  void.  For  example,  the  sale  of  immovable 
goods  by  a  secret  act  is  considered  as  void,  without 
value  to  any  one.  Property  sold  in  this  manner  is  con- 
sidered as  unsold.  The  purchaser  gets  no  rights  of 
property.  The  law  requires  every  sale  of  this  kind  to 
be  made  before  a  notary.  The  object  is  thus  attained, 
and  if  by  private  act  the  sale  cannot  take  place,  there 


188  THEORY  OF  LAW 

is  no  motive  for  individuals  to  proceed  in  that 
fashion. 

The  laws  which  have  as  their  sanction  the  inefficacy 
of  acts  which  violate  them  are  called  perfect,  for  they 
come  the  nearest  to  a  law  of  nature.  This  inefficacy 
may  have  two  forms.  The  acts  may  be  absolutely  null 
at  law,  or  they  may  be  only  voidable,  that  is,  such 
as  may  be  annulled.  They  are  absolutely  null 
when  that  is  the  result  decreed  as  a  consequence 
of  non-observance  of  the  law.  Such,  for  instance,  is 
the  result  of  a  sale  of  real  property  by  a  private  act, 
although  the  parties  were  agreed  as  to  the  intention 
to  transfer  the  property.  It  is,  on  the  other  hand, 
only  voidable,  when  rescission  can  be  demanded 
by  one  of  the  parties  interested  in  the  contract. 
Thus  a  contract  produced  by  duress  can  be  annulled 
only  on  the  application  of  the  party  subjected  to  the 
violence. 

It  is  necessary  to  distinguish  farther,  absolute  from 
relative  nullities.  The  act  violating  the  law  and  con- 
sidered as  totally  non-existent  is  stricken  with  absolute 
nullity,  as  for  example,  the  sale  of  real  estate  by  a 
private  act.  When  the  act  is  only  relatively  void,  it  is 
because  some  clauses  of  the  contract  may  be  upheld. 
A  bill  of  exchange,  for  example,  given  by  a  married 
woman  without  her  husband's  consent  is  void  as  a  bill 
of  exchange.  It  has,  however,  a  certain  value.  It  is 
that  of  an  ordinary  obligation. 

Sometimes  a  void  act  has  already  produced  its  result. 
It  will  not  suffice  then  to  proclaim  or  demand  the 
nullity  of  the  act.  The  annulment  of  the  act  must  be 
followed  by  one  which  re-establishes  the  violated  right. 
Such  a  re-establishment  of  the  violated  right  may  be 
accomplished  by  the  agents  of  authority  and  may  consist 
either,  first,  in  the  cessation,  if  necessary  by  force,  of  an 
unlawful  condition,  the  expulsion,  for  example,  of  a 


OBJECTIVE  AND  SUBJECTIVE  189 

renter  from  a  house  which  does  not  belong  to  him;  or  it 
may  consist,  second,  in  the  accomplishment  of  a  vio- 
lated obligation  and  this  at  the  expense  of  the  one  who 
has  violated  it,  as  the  repairing  of  a  pavement  of  a 
torn-up  street. 

There  are  also  some  cases  where  the  act  which  vio- 
lates a  right  contains  in  itself  the  realization  of  the 
object  with  which  the  wrong  was  done, — robbery  for 
example;  some  cases  where  the  right  violated  cannot  be 
re-established, — murder  for  example.  To  acknowledge 
the  crime  is  not  sufficient  in  such  a  case  to  repair  the 
injury  done,  so  law  has  established  other  sanctions. 
These  acts,  which  violate  law,  bring  with  them  conse- 
quences indicated  in  the  law,  as  in  the  laws  which  the 
Romans  called  leges  plus  quam  perfect®.  These  con- 
sequences may  be  of  two  kinds,  civil  damages  for  the 
benefit  of  the  injured,  and  punishments  set  up  by 
public  authority  in  the  general  interest. 

We  might  say  that  to  a  certain  extent  every  violation 
of  law  works  an  irreparable  injury. 

This  harm  is  from  one  point  of  view  that  offense  which 
every  injured  person  experiences  and  from  another  point 
of  view  is  the  violation  of  the  law  itself,  all  whose  pre- 
scriptions are  meant  to  be  scrupulously  followed.  These 
harms  are  of  so  great  a  variety  that  it  is  impossible  to 
classify  them.  They  depend  usually  upon  the  condi- 
tions under  which  they  are  wrought. 

We  know  only  that  private  damages  are  the  oldest. 
As  to  penalties  denounced  for  the  general  interest,  we 
may  say  that  they  depart  farther  and  farther  from 
private  damages  in  the  degree  that  governmental 
authority  is  augmented;  and  in  our  modern  law  the 
sphere  of  application  of  these  punishments  is  not  fixed 
by  any  general  principle,  but  by  different  considerations 
which  are  set  forth  in  the  penal  code. 

These    consequences    attached    by    the    law    to    the 


190  THEORY  OF  LAW 

criminal  act  which  it  punishes  do  not  render  unnecessary 
the  re-establishment,  so  far  as  possible,  of  the  violated 
right.  Thus  in  the  case  of  forgery,  besides  the  penalty 
to  which  the  guilty  one  is  subjected,  the  writing  is  void. 
So  in  a  case  of  robbery,  besides  the  punishment  involved 
of  the  robber,  he  is  required  to  restore  the  stolen  things. 
It  may  happen  meanwhile  that  the  re-establishment  of 
a  violated  right  may  bring  on  forbidden  consequences 
to  those  absolutely  strangers  to  the  doing  of  the  acts. 
The  annulment  of  a  marriage,  for  example,  may  bring 
upon  children  the  consequence  of  becoming  illegitimate. 
So  the  nullity  of  a  marriage  results  only  from  a  very 
grave  violation  of  law.  Any  less  important  act  may 
bring  about  the  punishment  of  the  parties,  but  leaves 
the  marriage  valid. 

It  is  the  same  when  a  contract  has  not  been  made 
upon  stamped  paper.  The  wrongdoers  pay  a  penalty. 
The  validity  of  the  contract  as  to  third  parties  remains. 

Such  laws,  whose  violation  brings  penalties  upon 
those  who  violate  them  while  preserving  the  legal  force 
of  the  act,  are  called  "leges  minus  quam  perfects." 

Besides  these  laws,  classed  so  by  the  sanction  which 
they  carry,  the  existence  must  be  recognized  of  a  whole 
category  of  laws  which  offer  no  sanction,  the  conse- 
quences for  whose  violation  have  not  been  fixed.  These 
laws  deserve  some  attention.  They  are  for  the  most 
part  laws  fixing  the  rights  of  the  organs  of  authority. 

The  organization  of  a  service  charged  with  the  execu- 
tion of  the  laws  is  considered  by  itself,  as  a  preventive 
measure  against  action  contrary  to  the  law,  and  for  this 
reason  it  is  in  public  law  that  the  leges  imperfect®  are 
the  most  numerous. 

But  the  organization  of  a  service  is  always  weakened 
by  such  imperfection,  since  the  agents  who  have  it  to 
do  are  men.  If  a  certain  liberty,  however,  is  not  given 
them  in  the  performance  of  their  task,  such  an  organiza- 


OBJECTIVE  AND  SUBJECTIVE  191 

tion  will  become  stiff  and  dead.  It  will  by  no  means 
satisfy  the  numerous  requirements  of  the  development 
of  life  and  movement  of  society.  If  you  make  an  or- 
ganization more  vital,  more  mobile,  better  applicable 
to  concrete  conditions,  to  the  necessities  of  the  times, 
you  give  necessarily  to  individual  tendencies  the  possi- 
bility of  manifesting  themselves.  The  organizations  em- 
ployed for  the  development  of  the  state  consequently 
explain,  but  without  justifying  them,  the  leges  imper- 
fects. The  vice  of  such  a  system  commences  to  show 
itself. 

We  must  consider  as  inapplicable  the  theories  of  the 
constitutional  school  which  boasted  above  all  of  the  or- 
ganization of  its  governmental  machine. 

There  is  general  agreement  today  in  recognizing  the 
necessity  of  attributing  a  sanction  to  the  rules  of  public 
law.  The  prosecutions  which  can  be  instituted  in  our 
day  against  acts  of  administration  have  transformed  a 
good  part  of  them  from  imperfect  laws  into  leges  per- 
fects. 

There  are,  however,  some  laws  which  necessarily  will 
remain  always  without  sanction.  These  will  be  the  ones 
which  establish  the  supreme  power.  This  supreme  power, 
which  is  not  subjected  here  below  to  any  authority, 
which  is  controlled  only  by  its  own  moral  dignity,  can  in 
fact  possess  only  in  itself  the  guaranty  for  the  accom- 
plishment of  all  the  duties  which  devolve  upon  it. 


CHAPTER  II 
THE  SUBJECTIVE  RIGHT 

SAVIGNY.     System  d.  heut.  rom.     Rechts  B.  I. 

IHERING.     Geist.  d.  rom.     Rechts.  B.  III. 

IHERING.    Zweck  im  Recht  B.  I.  s.  72. 

MUELLER.  Die  Elernente  des  Rechts  und  der  Rechtsbildung, 
1878. 

BIERLING.  Zur  Kritik  der  juristischen  Grundbegriffe.  Jh.  II. 
53,  47-148. 

REGELSBERGER.    Pandekten  I,  1893,  §§57-82;  195-233. 

Section  27.    Legal  Relations 

NEUNER.  Wesen  und  Arten  der  Privatrechtsverhaltnisse, 
1886. 

PLOSZ.     Beitrage  zur  Theorie  des  Klagerechts,  1880.     §§65-76. 

PUNTSCHART.  Die  moderne  Theorie  des  Privatrechts  und  ihre 
grundbegriffischen  Mangel,  1893. 

MOUROMTZEV.  Fundamental  Definitions  and  Divisions  in  Law, 
1879,  pp.  53-122. 

Since  legal  relations  are  also  social  relations,  but  gov- 
erned by  a  legal  rule,  it  is  necessary  in  order  to  explain 
them  satisfactorily  to  treat  first  of  the  relations  in  gen- 
eral. 

Every  relation  supposes  a  "lien,"  a  dependence,  and  a 
capacity  of  influence  by  means  of  this  "lien."  Where 
there  is  no  dependence  there  is  no  relation.  If  between 
several  trigonometrical  quantities,  for  instance,  it  is  said 
that  there  exists  a  given  relation,  this  means  that  they 
depend  one  upon  the  other  and  that  changes  in  one  of 
them  provoke  corresponding  changes  in  the  others.  So, 
then,  if  between  given  phenomena  there  exists  a  causal 
relation,  this  means  that  the  consequences  depend  upon 
the  cause  and  that  the  presence  of  the  cause  produces 


OBJECTIVE  AND  SUBJECTIVE  193 

that  of  the  consequence.  On  the  other  hand,  if  between 
several  things  there  is  no  dependence,  we  assume  that 
there  is  no  relation  between  them. 

So,  human  relations  consist  in  some  sort  of  a  depend- 
ence, in  the  power  which  certain  individuals  have  over 
others. 

Men's  mutual  dependence  is  caused  by  several  condi- 
tions which  may  be  placed  in  three  groups:  physiolog- 
ical, economical,  moral. 

The  physiological  distinctions  of  sex  and  age  introduce 
mutual  dependence  among  men.  Because  of  their 
sexual  inclinations,  human  individuals  experience  the 
necessity  of  uniting.  The  child  from  its  birth  requires 
the  care  of  the  parents  and  these  last  become  old  and 
require  in  their  turn  the  aid  of  their  children.  We  might 
add  to  this  the  influence  of  the  laws  of  heredity,  which 
are  also  physiological  laws.  By  their  means  men  of  a 
common  origin  present  strong  physiological  and  moral 
resemblances  and  form  natural  groups  according  to  race, 
independently  of  their  wills.  To  this  group  also,  must 
be  added  the  propagation  of  maladies  among  men  by  con- 
tagion or  by  heredity.  From  the  point  of  view  of  their 
health  men  are  thus  dependent  upon  one  another. 

In  the  same  way  man's  necessity  for  protecting  him- 
self against  external  forces  of  nature,  which  is  the 
basis  of  economical  activity,  brings  also  mutual  depend- 
ence. The  forces  of  one  isolated  man  are  too  weak  for 
the  struggle  with  the  elements  around  him.  Men  find 
themselves  compelled  to  mutual  aid  in  two  ways;  there 
is  simple  collaboration  in  regard  to  a  labor  performed 
by  united  forces,  and  the  complex  collaboration  which 
we  call  the  division  of  labor.  In  this  latter  each 
man  does  something  special  and  each  for  all  and  all  for 
each. 

The  moral  life  of  man  increases  still  more  the  mutual 
dependence  of  one  upon  another,  since  the  necessity  of 


194  THEORY  OF  LAW 

exchanging  thoughts  is  one  of  the  very  strongest,  and 
mankind  support  isolation  only  with  great  difficulty. 
The  mutual  dependence  of  men  from  the  moral  point  of 
view,  indeed,  is  so  much  stronger  that  in  the  psychical 
development  of  man  the  social  factor  plays,  perhaps,  the 
chief  role.  Our  turn  of  mind  is  not,  for  the  most  part, 
our  own  work,  but  the  product  of  the  social  life  to  which 
we  belong.  It  is  necessary  only  to  recall  the  important 
role  played  in  the  development  of  mind  by  language, 
which  by  its  essence  is  necessarily  a  product  of  the  social 
life,  common  to  all,  and  cannot  be  an  attribute  of  any 
single  person.  The  dependence  of  men  with  regard  to 
each  other,  springing  from  society,  increases  in  direct 
proportion  to  the  development  of  social  life,  and  even  the 
physiological  conditions  of  such  dependence  act  with 
greater  and  greater  force.  Thanks  to  the  development  of 
social  culture  the  time  during  which  the  man  lives  under 
relations  of  dependence  on  his  parents  grows  longer  and 
longer.  The  bonds  which  unite  the  spouses  become 
stronger  since  their  relations  with  each  other  include 
those  necessary  for  education  of  their  descendants.  To 
the  influence  of  heredity  is  added  that  of  education  which 
gives  the  child  traits  of  character  not  possessed  by  his 
ancestry. 

The  increasing  density  of  population,  and  the  lack  of 
space,  introduces  among  men  a  dependence  in  increasing 
degree  which  we  might  call  hygienic.  The  force,  and 
action,  and  economic  demands  of  these  dependences  in- 
crease unceasingly.  On  the  one  side  economic  necessities 
augment,  and  on  the  other  the  division  of  labor  grows. 
Social  development  is  inseparably  bound  up  with  the  de- 
velopment of  man's  moral  faculties.  It  increases  these 
latter,  augments  their  moral  interests  in  extending  the 
moral  solidarity  of  ever  enlarging  groups.  Because,  also, 
of  these  conditions  human  life  is  made  up  of  many  differ- 
ent relations  among  men.  These  relations  have  doubt- 


OBJECTIVE  AND  SUBJECTIVE  195 

less  an  artificial  character,  but  men  are  combined  by 
their  means,  and  through  them  exercise  influence  over 
one  another. 

Men,  so  far  as  they  aid  themselves  by  legal  rules, 
transform  their  social  relations  into  legal  ones,  social  de- 
pendence into  a  legal  obligation,  and  the  power  of  influ- 
ence which  they  have  over  each  other  into  rights.  The 
legal  rules  fixing  human  interests  delimit  necessarily  the 
realization  of  those  interests  and  impose  upon  each 
man  some  obligation  of  guaranteeing  the  realization 
of  others'  interests.  So  the  law  adds  to  the  existing 
bases  of  mutual  dependence  a  new  one,  a  legal  base. 
If  my  relations  with  other  men  are  fixed  by  law,  the 
realization  of  my  interests  depends  not  only  upon  social 
conditions,  but  also  upon  my  legal  rights  and  my  legal 
duties.  At  the  same  time,  conformably  to  these  obliga- 
tions there  is  created  for  others  a  possibility  of  influ- 
encing me  in  a  particular  way  under  the  form  of  legal 
claims. 

Legal  relations  suppose,  then,  a  dependence  under  the 
form  of  rights  and  duties,  and  suppose  also  a  legal  claim, 
that  is  to  say,  an  enforceable  right,  which  is  the  conse- 
quence of  this  dependence. 

Among  Roman  jurists  these  relations,  established  by 
law,  were  designated  by  the  expression  juris  mnculum. 
The  characteristic  peculiarity  of  these  legal  relations  con- 
sisted for  them  precisely  in  the  dependence  upon  objec- 
tive law.  The  active  side  of  the  legal  relation,  that  is  to 
say,  the  legal  claim  occupied  their  attention  so  little  that 
the  conception  of  a  subjective  right  in  the  sense  of  a 
capacity  had  not  even  taken  birth.1 

The  jurists  of  western  Europe,  on  the  other  hand,  and 
in  the  very  beginning,  the  glossators,  attributed  a  par- 
ticular value  to  the  active  side  of  the  relation,  to  the  as- 
sertion of  the  legal  claim.  They  do  not  assign  the  origin 

»  Bekker.  Pandekten.  I.     1886,  p.  46. 


196  THEORY   OP  LAW 

of  the  legal  claim  to  the  legal  relation,  but,  on  the  con- 
trary, consider  the  relation  as  a  consequence  of  the  as- 
sertion of  the  claim. 

The  explanation  of  the  difference  between  the  schools 
is  readily  accounted  for  by  the  " subjectivism"  peculiar 
to  the  Germanic  peoples  in  opposition  to  the  "objectiv- 
ism'-' of  antiquity,  and  also  by  this  second  reason  that 
Christianity  developed  the  role  of  the  will  with  peculiar 
force. 

The  law,  as  it  is  concerned  in  western  Europe,  does  not 
consider  its  subjective  side  as  an  element  of  legal  rules, 
but  as  a  free  and  individual  will,  recognized  and  pro- 
tected by  law. 

Since  in  law  this  individual  will  is  recognized,  there 
results  the  altogether  natural  consequence,  that  the  duty 
of  other  men  is  not  to  encroach  upon  the  domain  of  this 
will,  and  thus  are  established  the  relations  between  two 
wills. 

The  logical  development  of  this  conception  leads  natu- 
rally to  the  complete  negation  of  legal  relation  and  to  its 
replacing  by  the  simple  conception  of  subjective  right  in 
the  sense  of  a  legal  assertion  as  Brinz  exhibits  it.1  But 
the  exclusive  importance  given  to  the  legal  claim  is  not 
compatible  with  the  real  character  of  legal  phenomena. 
In  public  law  especially,  it  is  impossible  to  consider  the 
legal  claim  as  the  formative  principle,  the  fundamental 
base  of  the  manifestation  of  law. 

The  obligations  in  public  law  are  indicated  in  an  ex- 
tremely clear  fashion.  The  subjects  of  such  obligations 
are  always  exactly  determined,  while,  on  the  contrary, 
rights  are  scarcely  more  than  the  consequences  of  these 
obligations  and  it  is  an  indeterminate  body  of  persons 
who  enjoy  them.  Nearly  all  constitutional  law  reduces 
itself  to  the  study  of  the  duties  of  the  organs  of  author- 
ity, and  the  rights  which  are  given  them  are  so  many 

1  Brinz.  Archiv.  f.  civil.  Praxis.  Bd.  LXX.  s.  379. 


OBJECTIVE  AND  SUBJECTIVE  197 

conditions,  guaranteeing  their  assurance  of  the  possibility 
of  accomplishing  their  duties.  Judges,  for  example,  are 
bound  to  render  justice  and  it  is  with  this  view  only, 
that  of  accomplishing  this  function,  that  they  are  ac- 
corded certain  rights. 

So,  too,  all  the  relations  of  private  law  cannot  be  ex- 
plained as  consequences  of  the  legal  pretensions  of  the 
owner  of  some  right.  The  relations  of  passive  action  of 
right,  as  Ihering  defines  it,  cannot  be  thus  explained.  We 
find  such  action  only  where  there  is  an  obligation  with- 
out a  corresponding  assertion  of  claim.  Such  are  the  ob- 
ligations which  the  law  imposes  for  the  protection  of  the 
interests  of  unborn  children.  Such  are  the  duties  of  a 
debtor  with  regard  to  an  unknown  creditor,  a  debt  whose 
proprietor  is  anonymous  or  unknown,  and  such  the  duties 
of  the  owner  of  a  servient  tenement  where  the  dominant 
one  is  res  nullius. 

These  different  examples  show  clearly  that  the  obliga- 
tion can  exist  without  there  being  a  corresponding  right 
in  any  definite  person  to  assert  it,  and  that  it  is,  conse- 
quently, impossible  to  derive  all  legal  relations  from  the 
assertion  of  right. 

A  legal  claim,  on  the  contrary,  cannot  exist  without 
a  corresponding  duty.  If  nobody  is  bound  to  yield  to 
my  assertion  of  a  legal  right,  if  it  is  not  obligatory  upon 
anybody,  it  has  no  legal  validity.  This  is  why  in  legal 
relations  as  generally  in  all  others,  it  is  the  passive 
side,  the  obligation,  which  has  most  importance.  This 
importance  is  recognized  today  even  by  the  civilists. 
It  is  thus  that  Puntschart  thought  it  necessary  to 
replace  the  conception  of  juridical  relation  by  the 
conception  of  juridical  dependence  (Rechtsverband) , 
translating  by  this  term  the  Roman  expression  juris 
vinculum. 

This  new  conception  is  scarcely  practical.  The  jurid- 
ical connection  is  a  term  recognized  by  all,  and  which 


198  THEORY  OF  LAW 

offers  this  advantage,  that  it  embraces  the  idea  of  the 
realization  in  the  active  role  and  at  the  same  time 
in  the  passive  one,  of  the  action,  as  well  as  of  the  de- 
pendence. 

Every  relation  is  defined  by  circumstances  of  fact  as 
well  as  by  legal  rules.  There  is  no  relation  completely 
and  exclusively  determined  merely  by  the  law.  Rights 
and  obligations  exclusively  fixed  by  the  law  do  not  exist. 
The  relations,  for  example,  of  husband  and  wife,  lessor 
and  lessee,  master  and  servant,  are  governed  by  the  law 
and  also  by  the  social  situation,  by  their  practicability, 
the  character  of  the  parties,  their  mutual  dispositions, 
their  moral  and  religious  convictions,  etc.  It  is  by  the 
diversity  of  these  social  conditions  that  the  individual 
and  peculiar  physiognomy  of  each  concrete  and  peculiar 
relation  is  created,  but  the  juridical  form  of  all  these 
identical  relations,  all  marriages,  for  example,  all  con- 
tracts for  leasing,  remains  absolutely  the  same  because 
the  same  legal  rule  is  applied  to  all.  Since  it  is  precisely 
the  juridical  form  of  relations  which  concerns  a  jurist, 
we  comprehend  readily  how  important  it  is  for  the 
juridical  critic  to  distinguish  this  legal  form  from  the 
variety  of  facts. 

So  the  jurists  have  imagined  the  conception  of  legal  re- 
lations which  should  be  completely  and  exclusively  de- 
termined by  legal  rules.  In  these  relations  there  is  only 
one  legal  form  common  to  all  the  identical  ones.  These 
relations  are  called  juridical  institutions.  They  are  a 
legal  abstraction  from  the  concrete,  actual  matter,  and  if 
this  legal  form  is  common  to  all  the  relations  of  a  certain 
kind,  it  serves  as  the  common  type  for  all  the  relations  of 
that  sort. 

The  different  interests  which  make  up  our  social  life 
are  so  closely  bound  up  that  the  legal  relations,  which 
have  the  struggle  between  these  interests  for  a  base,  are 
not  isolated,  but  on  the  contrary  form  an  inseparable 


OBJECTIVE  AND   SUBJECTIVE  199 

whole.  This  combination  of  legal  relations  forms  what 
we  call  the  juridical  state.  It  is  the  same  with  legal  in- 
stitutions considered  as  the  common  type  of  legal  rela- 
tions. They  form  a  whole  which  we  will  call  the  jurid- 
ical order. 

Every  legal  relation,  as  we  have  seen,  is  composed  of 
a  right  and  a  duty.  Neither  can  exist  separately.  They 
are  necessarily  attributes  of  some  subject.  So  the  indis- 
pensable element  in  every  legal  relation  is  the  subject. 
This  element  is  not  always  single.  The  right  is  the  pos- 
sibility of  realizing  an  interest  and  the  realization  of  my 
interests  supposes  necessarily  the  use  of  some  sort  of 
means.  Every  right  requires,  then,  necessarily  to  be  ex- 
ercised on  an  object  whose  use  leads  to  the  realization  of 
the  sought-for  interest;  so  every  legal  relation  supposes  a 
subject  of  right,  a  subject  of  obligation,  and  object.  It 
is  by  the  examination  of  these  elements  that  we  reach  the 
determination  of  legal  relations. 

This  examination,  meanwhile,  is  not  all.  Legal  rela- 
tions do  not  stand  immovable;  they  change,  they  evolve 
without  ceasing.  It  is  then  necessary,  besides  studying 
their  form,  to  regard  also  their  conditions  and  changes. 


200  THEORY   OP  LAW 


Section  28.     The  Subject  of  Juridical  Relations 

KIERULT.     Theories  des  Civilrechts  B.  I.  s.  82. 

ROEDER.     Naturrecht.  B.  I.     §52  und  ff. 

TRENDELENBURG.     Naturrecht.     §§85-88. 

LASSON.     Naturrecht.     §46. 

BEKKER.  Iherings  Jahrbucher  fur  Dogmatik.  B.  XII.  Rechts- 
subjekten. 

WALLASCHEK.  Studien  zur  Rechtsphilosophie,  1889.  ss. 
144-181. 

Juridical  rules,  being  rules  for  the  delimitation  of  hu- 
man interests,  are  applicable  only  to  relations  between 
men.  Moral  rules  are  absolute  duties.  They  do  not  de- 
pend upon  the  interest  which  other  persons  may  have  in 
their  accomplishment.  There  can,  therefore,  be  moral 
duties  towards  oneself  and  these  duties  have  for  each 
man  an  obligatory  force.  Law,  on  the  other  hand,  hav- 
ing for  its  end  the  delimitation  of  interests  in  conflict, 
presupposes  a  relation  between  these  interests  and  there- 
fore between  persons. 

We  cannot  in  this  matter  subscribe  to  the  opinion  of 
Dernburg,1  Regelsberger,  Mouromtzev  and  some  others 
who  recognize  the  existence  of  juridical  relations  with 
regard  to  things.  The  relation  of  the  proprietor  of  a 
thing  with  that  thing  is  not  distinguishable  from  the  re- 
lation of  that  thing  towards  one  who  has  no  right  over 
it.  The  proprietor,  just  like  one  who  has  no  ownership 
but  uses  it,  employs  the  object  according  to  fixed  tech- 
nical rules  and  according  to  personal  taste.  The  only 
difference  between  the  one  and  the  other  is  in  relation  to 
other  persons.  When  a  relation  is  established  with  re- 
spect to  the  thing  by  another  person,  then  a  legal  claim 
would  appear.  Legal  relations  exist  then,  not  between  an 

1  Dernburg,  Pandekten,  I.     §22. 


OBJECTIVE  AND  SUBJECTIVE  201 

individual  and  a  thing,  but  only  between  several  indi- 
viduals on  account  of  the  use  of  a  thing. 

Legal  relations,  it  is  readily  seen,  are  possible,  then, 
only  between  individuals.  Only  individuals  can  be  sub- 
jects of  juridical  relations.  They  alone  are  capable  of 
them.  This  faculty  of  being  subjects  of  legal  relations  we 
shall  call  ''capacity." 

Law  in  its  modern  conception  recognizes  in  fact  the  ex- 
istence of  legal  capacity  only  in  man.  It  was  not  always 
so.  Primitive  man,  assimilating  natural  phenomena  to 
human  acts,  considered  them  as  the  manifestations  of 
some  conscious  will.  Legal  rules  were  not  limited  to  their 
action  upon  human  relations,  and  were  recognized  as  to 
things  and  animals,  giving  them  rights  and  duties.  Even 
in  the  middle  ages  animals  were  brought  to  judgment  and 
punished;  but  at  present  only  men  are  recognized  as  ac- 
countable for  their  acts. 

The  punishments  inflicted  upon  those  who  mistreat 
animals  do  not  contradict  this  principle.  It  is  not  in  the 
animal's  interest  that  the  punishment  has  been  fixed,  but 
with  a  view  to  protecting  the  sentiment  of  humanity  in 
those  who  would  be  offended  at  the  purposeless  torture 
of  an  animal.  The  proof  of  this  is  that  if  the  harm  to  the 
animal  has  some  reasonable  object,  whether  in  the  inter- 
est of  science,  or  to  supply  the  table,  there  is  no  punish- 
ment. 

A  quite  recent  German  opinion,  specially  advanced  by 
Bekker,  maintains,  however,  that  animals  can  also  be 
subjects  of  legal  relations.  If,  for  example,  someone 
leaves  by  will  certain  goods  under  this  condition,  that 
they  shall  serve  after  his  death  for  the  maintenance  of  his 
dog  or  his  horse,  these  animals  become  proprietors  of  the 
goods  and  are  subjects  of  certain  rights. 

Some  years  later,  however,  in  the  Pandects,  Bekker 
recognized  that  it  is  better  to  restrict  the  conception  of 
subject  of  a  right  to  persons  alone.  Such  a  limitation  is 


202  THEORY  OF  LAW 

necessary  not  only  in  the  interest  of  convenience,  but  also 
in  that  of  truth. 

We  can  in  truth  assign  goods  to  any  use  we  please,  but 
as  a  matter  of  fact  these  goods  are  assured  of  their  des- 
tination only  so  long  as  there  is  a  man  interested  in 
some  way  in  its  accomplishment,  whether  by  esteem  for 
the  memory  of  the  deceased  or  for  some  other  cause; 
so,  after  the  disappearance  of  the  interested  person,  the 
interests  of  the  dog  or  horse  are  no  longer  guaranteed. 
Then,  even  in  this  case  the  interests  of  the  animals  do 
not  constitute  by  themselves  directly  the  basis  of  the 
legal  relation,  but  only  in  a  conditional,  indirect  fashion, 
and  to  the  degree  in  which  they  serve  some  human  ad- 
vantage or  interest.  The  real  subject  of  the  legal  re- 
lation even  here  is  one  or  more  persons  interested  in 
the  accomplishment  of  the  devise  made  for  the  animal's 
profit. 

As  much,  also  must  be  said  as  to  what  concerns  super- 
natural beings  and  physical  forces.  The  repression  of 
religious  crimes  does  not  have  for  its  purpose  the  inter- 
est of  the  divinity,  for  the  divinity  has  no  need  of  such 
protection,  but  only  the  religious  sentiment  of  the  believ- 
ers. The  goods  of  which  the  church  is  the  proprietary 
assure  the  satisfaction  of  religious  needs,  those  of  the 
ministers  of  the  cult,  and  consequently  of  men. 

We  come  thus  to  another  question.  To  recognize  only 
men  as  subjects  of  legal  relations,  does  not  this  contra- 
dict the  conception  of  the  legal  personality  of  moral  per- 
sons? This  conception  is  based,  we  know,  upon  the  fact 
that  certain  rights  and  certain  duties  exist  for  the  advan- 
tage, not  of  individuals,  but  of  a  class  of  individuals, — 
corporations,  for  example,  or  establishments.  We  dis- 
tinguish, for  example,  the  goods  and  the  duties  of  the 
actionaries  from  those  of  the  society  which  they  serve, 
those  of  individuals  from  those  of  the  state,  those  of  the 
administration  of  a  hospital  and  of  the  sick  who  are 


OBJECTIVE  AND   SUBJECTIVE  203 

found  there,  from  those  of  the  hospital  itself  considered 
as  a  public  establishment. 

As  Savigny,  who  is  an  authority  in  this  whole  matter, 
urges,  such  juridical  persons  are  not  genuine  subjects  of 
legal  relations  but  are  only  a  fiction.  Brinz  goes  farther 
yet  and  rejects  absolutely  the  whole  idea  of  fiction;  this 
whole  conception  of  legal  persons  is,  as  he  says,  entirely 
unnecessary. 

The  writers,  on  the  other  hand,  like  Beseler,  Gierke, 
Dernburg,  Regelsberger,  defend  the  existence  of  legal  per- 
sons, and  recognize  them  as  real  subjects  of  legal  relations 
and  not  as  pure  fictions.  Regelsberger  formulates  thus 
his  opinion:  The  object  of  the  laws,  says  he,  is  the 
guaranteeing  of  human  interests,  but  a  good  many  of 
these  interests  cannot  be  realized  in  whole  or  in  part 
except  by  the  combined  powers  of  several  individuals. 
This  is  why  there  exist  other  subjects  of  legal  relations 
than  individuals.  There  are  these  moral  juridical  per- 
sons. While  possessing  no  corporal  individuality,  they 
are  real  subjects  of  rights;  they  constitute  social  organ- 
isms. Their  vivifying  element  comes  from  man,  but  in  so 
far  as  they  are  members  of  the  organism  and  act  con- 
formably to  its  purpose  these  men  give  birth  to  a  particu- 
lar force  (verban dsleben) ,  and  to  a  collective  will  distinct 
from  their  individual  wills.  In  the  view,  then,  of  the  de- 
fenders of  the  real  existence  of  moral  juridical  persons  as 
distinct  subjects  of 'right,  the  purpose  is  always  the  same; 
it  is  some  human  interest,  but  an  interest  common  to  a 
whole  group  of  individuals.  The  force  of  this  moral  per- 
son is  the  product  of  the  activity  of  all  the  members  or 
representatives  of  this  group;  its  will  is  that  of  the  indi- 
viduals who  compose  it.  All  the  juridical  relations  of  a 
moral  person  can,  then,  be  reduced  to  relations  of  indi- 
viduals, but  these  relations  are  very  complex,  greatly 
mingled,  and  it  is  for  this  reason  that  they  are  considered 
for  the  advantage  of  legal  analysis  as  the  relations  of  a 


204  THEORY  OF   LAW 

single  subject  artificially  constructed,  and  this  subject  is 
the  moral  person. 

It  is  in  this  way  that  Ihering  explains  his  conception  of 
a  juridical  moral  person.  The  conception  of  juridical  per- 
son is  for  him  only  a  particular  process  in  the  juridical 
construction  of  the  actual  relations  of  physical  persons. 

Here,  also,  are  some  men  who  are  the  real  bearers  of 
interests  delimited  by  law,  but  these  interests  are  com- 
mon to  the  whole  group  of  individuals  whose  composi- 
tion can  be  varied  without  changing  its  identity;  so  the 
legal  rules,  instead  of  delimiting  separately  the  identical 
interests  of  a  throng  of  individuals,  consider  these 
identical  interests  as  a  single  one  and  the  group  itself  as 
a  single  subject  of  legal  relations,  as  a  single  juridical 
person. 

It  is  only  a  special  process  for  reaching  a  simplifica- 
tion of  the  mutual  relations  of  men.  It  would  be  very 
difficult,  for  example,  to  determine  the  relation  existing 
between  the  person  who  buys  something  of  a  stock  com- 
pany and  each  stockholder  of  the  society,  or  again,  the 
relation  which  exists  between  every  holder  of  a  state's 
obligation  and  each  citizen  of  the  state.  It  is1  much  sim- 
pler to  consider  the  relation  only  between  the  purchaser 
and  the  society,  or  between  the  citizen  and  the 
state. 

Our  conception  of  legal  personality  might  be  com- 
pared to  that  of  the  parentheses  in  algebra.  Just  as  in 
algebra  we  place  within  the  parentheses  the  quantities 
united  by  signs  plus  and  minus  to  simplify  the  calcula- 
tion, so  in  law  we  place  together  all  the  identical  inter- 
ests of  a  certain  group  of  persons  by  the  conception  of 
juridical  personality,  and  determine  afterwards  the  rela- 
tions between  the  group  and  each  member. 

It  is,  as  we  have  seen,  only  men  who  can  be  subjects  of 
legal  relations.  This  does  not  mean  that  all  would  always 
be  "capable." 


OBJECTIVE  AND  SUBJECTIVE  205 

The  history  of  modern  law,  on  the  other  hand,  offers 
us  a  good  many  examples  to  support  this  idea.  For  a 
long  time  slaves  were  considered  only  as  things,  goods, 
which  could  not  be  subjects  of  legal  relations,  and  were 
without  any  juridical  capacity.  In  modern  civilized  states 
slavery  has  been  abolished  under  all  its  forms,  but  in 
the  barbarous  states  like  those  in  central  Africa  it  still 
exists. 

Modern  law,  then,  recognizes  all  men  as  "capable" 
but  each  one  does  not  possess  equal  capacity  for  all 
rights.  This  capacity  can  be  more  or  less  extended.  All 
the  incapacitated  can  be  brought,  however,  into  four 
different  categories:  those  who  are  smitten  with  nat- 
ural restrictions,  or  with  social  restrictions,  those  which 
have  their  source  in  incompatibility  with  certain  legal 
relations,  and  finally,  those  which  result  from  penal  re- 
strictions. 

By  natural  restrictions  we  mean  restrictions  which  have 
for  cause  age,  sex,  race.  It  is  thus  that  in  a  general  way 
women  are  recognized  as  incapable  of  exercising  political 
rights.  Individuals  under  sixteen  years  of  age  cannot 
serve  as  administrators.  Deaf-mutes  cannot  be  members 
of  a  jury. 

Social  restrictions  depend  upon  social  situations,  as  the 
inequality  between  classes,  between  professions,  and  be- 
tween religions.  Members  of  religious  bodies,  for  exam- 
ple, cannot  own  land.  Innkeepers  are  sometimes  denied 
the  right  of  being  electors  in  the  towns.  The  Jews  are 
not  allowed  to  live  outside  the  territory  assigned  to  them. 

The  restrictions  which  have  their  source  in  certain  in- 
compatibilities with  legal  relations  arise  from  the  fact 
that  the  possession  of  certain  rights  precludes  others.  A 
married  person  cannot  marry  again  so  long  as  the  pre- 
ceding marriage  is  not  dissolved.  High  functionaries  in 
the  state  cannot  at  the  same  time  hold  private  employ- 
ments. 


206  THEORY  OP  LAW 

Finally  there  is,  we  have  said,  a  class  of  penal  restric- 
tions. These  are  the  consequences  of  an  arrest  or  a  judg- 
ment. They  are  an  integral  part  of  the  penalty  involved 
upon  one  condemned. 

Capacity  means  that  the  person  can  have  certain  rights, 
but  does  not  necessarily  mean  that  the  person  actually 
possesses  them.  To  have  ability  to  acquire  a  right,  and 
to  exercise  it,  are  not  the  same  thing.  If  one  is  capable 
of  possessing  an  ownership  of  real  property,  this  does  not 
mean  that  everybody  has  it.  Capacity  and  possession 
are  two  quite  different  things. 

Certain  rights  require,  besides  capacity,  the  presence 
of  particular  facts,  certain  events,  as,  for  example,  the 
death  of  a  testator,  or  certain  acts,  an  acquisition,  for  ex- 
ample, by  which  the  connection  between  the  person  and 
the  right  is  created. 

The  appropriation  of  rights  by  their  subject  is  called 
the  acquisition  of  right,  and  the  rights  are  rights  acquired. 
There  are  rights  which  have  an  exclusive  character  and 
which  cannot  be  exercised  at  the  same  time  by  several 
persons,  and  as  an  example  of  such  rights  we  cite  the 
right  of  property,  but  if  the  right  is  not  exclusive  and 
may  belong  at  the  same  time  to  an  indefinite  number  of 
persons,  the  presence  of  the  conditions  necessary  for  ca- 
pacity suffices  for  their  possession;  for  example,  the  elec- 
toral right. 

Capacity  commences  at  birth,  to  end  only  at  death. 
It  is  only  living  persons  who  have  it.  The  child  born 
dead  cannot  be  the  subject  of  legal  relations.  It  is  con- 
sidered by  the  law  as  if  it  had  never  existed.  However, 
certain  rights  exist  for  the  advantage  of  the  infant  not 
yet  born,  but  under  the  condition  that  it  shall  be  born 
alive,  and  thus  certain  duties  are  imposed  upon  persons 
who  have,  so  to  say,  charge  of  the  birth  and  life  of  the 
infant.  They  cannot,  for  example,  during  pregnancy 
divide  the  father's  estate  if  he  is  already  dead. 


OBJECTIVE  AND  SUBJECTIVE  207 

Man  is  recognized  as  capable  of  rights  from  the  instant 
of  his  birth;  from  the  complete  detachment  of  his  body 
from  that  of  his  mother.  This  capacity  lasts  until  his 
death,  that  is  to  say,  until  the  final  disappearance  of  the 
last  signs  of  life,  the  beat  of  the  heart  and  the  respira- 
tion. 

A  prolonged  absence,  if  the  dwelling  place  is  unknown, 
is  equivalent  to  death  and  brings  to  the  absent  a  loss  of 
capacity.  Some  legislative  enactments,  that  of  the  Bal- 
tic, for  example,  recognize  as  dead  one  who  in  his  absence 
has  attained  the  average  age  of  mankind, — that  is  to 
say,  seventy  years  of  age.  Other  legislators,  Russian  for 
example,  recognize  as  dead  one  who  has  been  absent  a 
certain  length  of  time  independently  of  his  age. 

With  death,  capacity  completely  disappears.  A  dead 
body  has  no  rights.  If  the  law  has  proclaimed  penalties 
against  the  desecrater  of  tombs,  it  is  with  a  view  to  the 
protection  of  those  persons  whom  such  conduct  would  of- 
fend owing  to  their  relations  to  the  deceased. 


208  THEORY  OF  LAW 


Section  29.     Rights  and  Duties 

JEERING.     Geist  des  rom.     Rechts.     B.     III. 

THON.     Rechtsnorm  und  subjektives  Recht,  1878,  223  und  ff. 

BIERLING.     Kritik  der  jurist.     Begriffe,  II.     49,  ff. 

BEKKER.     System,  I.     s.  46. 

SCHUPPE.     Der  begriff  des  subjektiven  Rechts,  1888. 

ZENTHOEFER.     Das  subjektives  Recht,  1891. 

SCHLOSSMANN.     Der  Vertrag,  1876.     ss.  213,  ff. 

The  explanation  of  the  conception  of  right  in  the  sub- 
jective sense,  of  right-power,  is  the  most  difficult 
and  controverted  question  in  the  study  of  legal  rela- 
tions. 

The  influence  of  legal  rules  over  the  conditions  for  real- 
ization of  our  interests  is  so  varied  and  these  different 
forms  of  influence  interpenetrate  so  closely  that  it 
is  very  difficult  to  proceed  to  a  special  examination 
of  each  of  them  and  to  separate  with  clearness  the 
"right-power"  from  other  consequences  which  the  legal 
rule  draws  with  it  into  the  sphere  of  the  realization  of 
our  interests. 

Legal  rules  first  of  all  forbid  the  use  of  certain  means 
for  realizing  human  interests  and  so  make  a  distinction 
between  what  is  permitted  by  the  law  and  what  is  for- 
bidden by  it. 

The  prohibition  limits  the  possibility  of  actual  realiza- 
tion of  an  interest,  restricts  it.  Permission,  on  the  other 
hand,  brings  no  change  in  the  conditions  of  the  realiza- 
tion of  an  interest.  What  is  not  forbidden  may  within 
the  limits  of  possibility  be  done.  Where  the  law  does 
not  forbid  the  doing  of  a  thing,  only  the  lack  of  material 
means  serves  to  prevent  its  accomplishment  under  this 
permission. 


OBJECTIVE  AND  SUBJECTIVE  209 

It  is  permitted  to  all  the  world  to  ride  in  a  carriage, 
but  he  only  can  do  it  who  has  the  necessary  means.  The 
legal  rule  here  neither  creates  nor  guarantees  the  possi- 
bility, but  authorizes  it  as  it  in  fact  exists. 

The  influence  of  legal  rules  over  the  conditions  for  the 
realization  of  human  interests  is  not  limited  solely  to 
negative  action.  It  is  shown  also  under  a  positive  form, 
and  may  have  as  a  result  an  extension  of  the  actual  pos- 
sibility. 

In  forbidding  the  employment  of  certain  means  for  the 
realization  of  human  interests,  it  enlarges  by  this 
very  fact  the  possibility  of  the  realization  of  other 
interests.  The  other  interest  may  reach  its  realization 
not  only  within  the  limits  of  actual  possibility  but  its 
owner  can  demand  also  that  the  prohibition  in  the  law 
be  observed  and  the  obligation  imposed,  of  not  doing 
some  particular  act,  obeyed.  In  this  case  the  legal  rule 
adds  a  new  force  and  increases  the  favored  person's 
power  for  the  realization  of  his  interests.  It  is  this 
direct  and  positive  influence  of  legal  rules,  this  in- 
fluence which  confers  an  enlarged  possibility  of  realiza- 
tion, which  we  call  "subjective  right"  or  "right-power." 
In  other  terms,  this  right  is  a  possibility  of  the  realiza- 
tion of  an  interest  to  which  corresponds  a  legal  obliga- 
tion. 

By  this  fact,  that  the  law  creates  a  corresponding  obli- 
gation, it  is  distinguished  from  a  simple  permission. 
When  one  has  a  right  to  anything,  all  is  permitted  to 
him,  but  he  has  no  right  over  all  which  is  permitted,  but 
only  over  the  things  guaranteed  by  the  creation  of  a  cor- 
responding obligation.  These  rights  can  exist  only  be- 
tween individuals  and  not  in  our  relations  to  the  phe- 
nomena of  the  outer  world. 

We  must  distinguish,  then,  the  simple  permission  to  do 
something  which  is  only  an  absence  of  restrictions,  from 
the  right  created  by  the  increased  possibility  of  accom- 


210  THEORY  OP  LAW 

plishment  resulting  from  the  extension  of  a  corresponding 
capacity. 

The  influence  of  the  legal  rule  can  also  take  another 
form,  a  form  which  holds  the  mean  at  the  same  time  be- 
tween the  simple  absence  of  interdiction  and  the  creation 
of  a  new  right.  Human  interests  are,  in  general,  so 
closely  bound  together  that  any  change  produced  in  the 
conditions  for  the  realization  of  one  of  them  brings  al- 
ways some  consequences  for  other  interests  which  are 
bound  up  with  it  more  or  less  complexly. 

So  the  creation  by  a  legal  rule  of  a  duty  to  guarantee 
the  realization  of  any  interest  brings  always  consequences 
as  to  the  realization  of  other  connected  interests.  So, 
for  example,  the  creation  of  a  higher  tariff  upon  imports 
brings  advantages,  not  only  to  the  producers  of  the  com- 
modity in  the  interior  of  the  country,  but  also  to 
smugglers.  The  obligation  on  the  proprietor's  part,  as 
the  result  of  a  contract  with  his  tenant,  to  maintain  a 
stairway  to  the  rented  story,  and  cover  it  with  a  carpet, 
gives  to  the  tenants  on  the  lower  stories  the  possibility  of 
using  each. 

But  neither  the  smuggler  nor  the  tenant  have  rights 
because  of  the  advantages  which  they  draw  from  the  ex- 
isting legal  obligation.  They  can  make  use  of  it  only 
under  the  circumstances  of  fact  which  the  contract  points 
out.  If  the  circumstances  change  and  they  can  no  longer 
use  these  advantages,  they  have  no  right  to  ask  of  any- 
body the  re-establishment  of  the  former  state  of  things, 
so  as  to  use  the  carpet  or  to  draw  greater  profits  from 
smuggling.  The  person,  on  the  other  hand,  who  has  a 
right,  if  circumstances  intervene  which  interfere  with  its 
exercise,  can  demand  its  restoration  and  this  by  virtue  of 
a  legal  rule. 

We  should,  then,  distinguish  right  from  mere  power, 
as  a  possibility  to  which  directly  corresponds  a  legal  ob- 
ligation,  as  distinguished  from  the  possibility  which  we 


OBJECTIVE   AND   SUBJECTIVE  211 

have  of  using  accidental  consequences  of  others'  rights 
for  the  realization  of  our  interests.  The  action  of  legal 
rules  here  exhibited  is  called  by  Ihering  reflex  action 
of  law.  The  obligation  corresponding  to  a  right  can 
be  imposed  upon  all  those  whose  situation  would  lead 
to  resistance  to  its  use.  In  this  case  the  subject  of 
the  obligation  is  not  determined  by  his  personal  char- 
acter, but  by  an  objective  character,  from  the  op- 
position which  arises  as  a  result  of  the  use  of  the  given 
thing. 

The  rights  to  which  such  an  obligation,  which  is  com- 
mon to  all,  corresponds  are  called  rights  over  things. 
They  are  called  also  rights  against  all,  or  again,  real 
rights.  Opposed  to  them  are  rights  against  persons. 
The  obligation  corresponding  to  these  last  rests  only  upon 
a  determinate  individual  or  individuals.  It  is  only  by 
connection  with  this  obligation  that  rights  as  against  per- 
sons can  be  realized. 

The  right  of  property  might  serve  as  an  example  of 
the  "real  right"  (in  rem).  The  owner  of  the  thing  can 
require  of  everybody  that  he  do  not  stand  in  the  way  of 
the  owner's  right  of  property.  As  an  example  of  rights 
against  persons,  in  personam  may  be  cited  in  hiring  for 
service. 

Every  right  supposes,  necessarily,  a  corresponding  ob- 
ligation. If  the  obligation  does  not  exist,  there  will  be 
only  a  permission  and  not  a  "right."  But  an  obligation 
may  sometimes  exist  without  a  corresponding  right. 
This  happens  when  the  interest  which  constitutes  the 
subject-matter  of  the  corresponding  right  arises  subse- 
quently to  it  or  is  temporarily  suspended.  Thus  the  ob- 
ligation not  to  assail  the  right  of  an  unborn  child  corre- 
sponds to  no  right,  since  the  foetus  is  not  yet  a  subject 
of  right.  The  obligation  is  here  created  in  expectation 
and  by  way  of  protection  of  the  life  of  the  infant  to  be 
born. 


212  THEORY  OF  LAW 

In  the  same  way  when  a  bill  of  exchange  is  lost  and  is 
temporarily  out  of  possession  of  anybody,  the  obligation 
of  the  acceptor  has  not  for  the  time  being  any  cor- 
responding right.  The  obligation  meanwhile  does  not 
disappear  on  this  account,  because  the  instrument 
may  be  found  by  some  person  and  this  person  acquire 
the  rights  given  by  the  bill  of  exchange.  The  ac- 
tion in  such  a  case  Ihering  calls  passive  action  of 
law. 

We  have  denned  subjective  right  (right-power,  droit- 
pouvoir,  pravomochia)  as  the  possibility  of  the  realization 
of  an  interest  to  which  corresponds  directly  an  obli- 
gation. The  definition  assumes  the  formal  and  mate- 
rial point  of  view  of  legal  right.  On  the  external  and 
formal  side  this  right  is  a  claim  (Rechtsanspruch]  of 
an  individual  for  the  performance  of  the  obligation 
by  the  one  subject  to  it.  On  the  internal  and  mate- 
rial side  it  is  the  possibility  of  the  realization  of 
an  interest,  and  as  this  realization  supposes  always  the 
use  of  some  natural  forces  the  "matter"  of  the 
legal  right  is,  in  general,  the  use  of  such  forces.  Their 
use  supposes  only  the  presence  of  needs.  The  asser- 
tion of  a  claim  supposes  necessarily  a  conscious 
will.  Our  will  can  be  set  in  movement  not  only 
to  satisfy  our  personal  needs,  but  also  those  of 
others. 

Man  can  act  in  the  interest  of  another,  but  the  use  he 
makes  of  goods  is  inseparable  from  the  need  which  he 
has  of  them.  The  claim  which  he  has  for  the  perform- 
ance of  an  obligation,  guaranteeing  the  satisfaction  of 
his  needs,  can  be  realized  by  other  persons.  This  clearly 
happens  when  the  subject  who  has  the  need  has  no  con- 
scious will  or  not  enough.  To  guarantee  the  realization 
of  his  interests  it  is,  then,  necessary  that  there  be  the 
will  of  another  person  who  directs  him.  Guardians  act 
thus  for  the  demented  and  for  minors. 


OBJECTIVE  AND   SUBJECTIVE  213 

The  same  effect  is  reproduced  with  a  view  to  con- 
venience when  a  regulation  of  interests  common  to  a 
whole  group  of  individuals  is  attempted.  Instead  of  all 
the  wills  acting  together  in  the  common  interest,  one  of 
these  wills  acts  for  the  whole,  and  so  arises  what  we  call 
the  legal  person.  Meanwhile,  even  when  such  a  distinc- 
tion is  under  consideration  as  that  between  the  subjects 
of  a  will,  serving  a  given  interest,  and  that  interest  itself, 
one  ought  to  separate  the  bearer  of  the  interest,  the  bene- 
ficiary, from  the  bearer  of  the  will,  the  director.  When 
the  will  acts  for  the  advantage  of  another  there  results, 
not  a  right,  but  an  obligation.  He  for  whose  advantage 
the  right  exists  which  produces  a  legal  rule  is  not  always 
the  bearer  of  the  right.  Sometimes,  owing  to  the  reflex 
action  of  law,  he  enjoys  the  advantage  of  a  right  which 
he  could  not  have  independently.  He  would  become  the 
subject  of  a  right  only  if  the  possibility  of  the  use  of  it 
is  guaranteed  to  him  by  a  corresponding  title,  even  if 
that  title  is  realized  by  another's  voluntary  action.1 

Most  jurists,  on  the  contrary,  in  defining  the  notion 
of  the  subject  of  a  right,  attach  importance  only  to  the 
right,  or  to  the  claim,  or  rather,  to  its  employment,  and 
they  reach  in  this  way  some  radically  false  conse- 
quences. 

It  is  thus  that  we  must  explain  Bekker's  paradoxical 
doctrine,  System  I,  s.  56.  According  to  him,  the  owner 
of  the  right  over  given  goods  is  the  party  whose  bills, 
drawn  against  them,  are  guaranteed  by  these  goods;  as 
if  it  were  possible  to  decide  what  bills  are  secured  by 
the  goods  if  one  does  not  know  to  whom  the  goods 
belong. 

1  It  is  in  this  precise  way  that  Bernatzik,  Kritische  Studien  uber  Begriff 
fur  juristischen  Person  (Archiv  fur  off.  R.  B.  V.,  1890.  s.  223)  defines  the 
subject  of  a  right.  "  Rechtssubjekt  ist  der  Trager  eines  jeden  menschlichen 
Zweckes,  den  die  herrschende  Rechtsordnung  als  Selbstzweck  dadurch  aner- 
kennt,  dass  sie  dem  zu  seiner  Realisirung  erfordlichen  Willen  rechtliche  Kraft 
verleiht." 


214  THEORY  OF  LAW 

The  "matter,"  the  content,  of  the  right  over  things, 
we  have  said,  is  the  employment  of  those  things  by  the 
bearer  of  the  right.  Such  is  the  general  definition  of  the 
matter  of  a  right,  but  the  usage  of  the  right  may  be  ex- 
tremely various.  It  may  be,  first,  a  simple  use  with  no 
necessity  of  excluding  others  from  the  use  of  the  same 
object  nor  the  possibility  of  varying  the  means  of  such 
usage.  This  use  consists  in  the  right  to  employ  a  thing 
in  common  with  other  persons  and  conformably  to  its 
predetermined  organization.  Such  a  usage  is  a  funda- 
mental element  of  the  matter  of  an  obligation  in  this 
sense,  that  it  is  absolutely  indispensable  to  the  exercise 
of  any  right;  but,  it  is  the  most  restricted  form  of  a 
right.  The  use  which  each  of  us  makes  of  public  roads  is 
an  example  of  such  a  right. 

There  is  for  every  right  not  only  a  fundamental  ele- 
ment like  this  usage,  but  a  natural  element  which  de- 
pends upon  the  very  nature  of  our  needs  and  not  upon 
the  complexity  of  social  relations.  Simple  usage  serves 
for  the  immediate  satisfaction  of  human  needs,  so  only 
physical  persons  can  make  use  of  things.  Legal  persons 
cannot  of  themselves,  and  without  an  intermediary,  make 
use  of  objects. 

A  second  fundamental  element  of  the  matter  of  a  right 
is  possession.  It  consists  in  the  possibility  of  exclud- 
ing other  persons  from  the  usage  of  the  object  over 
which  we  have  rights.  For  example,  the  lessor  of 
an  immovable  thing  cannot  only  use  that  thing  to  sat- 
isfy his  needs,  but  he  has,  besides,  the  right  of  exclud- 
ing all  other  persons  from  its  use,  even  when  he  is  not 
employing  it. 

From  its  nature,  then,  possession  is  a  condition  which 
facilitates  and  guarantees  the  use  of  goods,  but  posses- 
sion has  at  the  same  time  a  more  independent  scope.  It 
augments  use,  enlarges,  so  to  speak,  its  natural  limits. 
Man  has  the  use  of  goods  which  he  employs  to  satisfy 


OBJECTIVE  AND  SUBJECTIVE  215 

personal  wants.  Possession  gives  him  the  added  possi- 
bility of  exploiting  for  his  own  profit  the  needs  of  others. 
If  a  man  has  the  right  by  possession  to  prevent  others 
from  making  use  of  the  object,  he  has  also  the  right  to 
authorize  its  usage  under  certain  conditions,  notably 
under  the  form  of  compensation.  We  see  appear  thus 
the  advantage  of  acquiring  in  this  way  possession  of 
things  of  which  we  have  no  immediate  need,  but  from 
which  we  may  draw  in  the  meanwhile  a  profit  by  letting 
them  to  others. 

The  third  element  in  the  content  of  a  right  is  that  of 
disposing  of  the  object,  the  jus  disponendi.  Ihering  de- 
fines it  as  the  right  of  changing  or  modifying  the  manner 
of  using  the  object.  Neither  usage  nor  possession 
quite  embraces  this  power  of  disposition  of  the  ob- 
ject. The  possessor  of  an  object  ought  to  keep  un- 
changed its  original  organization  and  purpose.  The 
lessor  of  a  house,  for  example,  can  neither  remodel  nor 
destroy  it. 

The  right  of  disposing  of  an  object  is  made  up  of  three 
different  elements.  It  includes,  first,  the  right  of  mod- 
ifying the  usage  without  destroying  the  object  and 
without  turning  it  over  to  another  person.  This  is  the 
jus  dbutendi.  It  includes  also  the  right  to  transmit  the 
object  to  another  person,  the  jus  alienandi,  for  this  is  one 
way  of  using  the  object.  Finally,  the  third  element  is 
the  right  of  destroying  the  object,  of  annihilating  it. 
This  is  the  jus  disponendi  de  substantia.  This  third  ele- 
ment exists  only  if  the  right  of  usage  is  applied  to 
things. 


216  THEORY  OF  LAW 


Section  30.     The  Objects  of  Rights 

REGELSBERGER.     Pandekten  I.     s.  357. 
BEKKER.     System.     I.     s.  81. 
KIERULF.     Throne,  I.     s.  129. 
IHERING.     Zweck  im  Recht,  I.     s.  70. 
GOLMSTEIN.     The  Principle  of  Identity,  p.  49. 

Since  the  "matter"  of  a  right  is  the  use  of  something 
and  there  can  be  no  such  use  if  there  is  no  object  to 
which  it  applies,  every  right  has,  therefore,  an  object. 
Every  actual  right  is  over  some  particular  thing.  Some, 
as  Bekker  for  example,  admit,  however,  the  existence  of 
rights  without  objects.  This  comes  from  their  taking 
into  consideration  only  a  particular  element  of  right, 
the  legal  claim  or  title,  but  the  "matter"  of  the 
right  is  always  the  use  guaranteed  by  this  legal  title,  a 
use  which  necessarily  supposes  an  object.  The  object 
of  a  right  may  be  anything  which  serves  as  a  means  for 
the  realization  of  interests  delimited  by  law.  All  our  in- 
terests are  realized  by  the  aid  of  some  force,  and  so  it 
may  be  said  in  a  general  way  that  forces  are  the  objects 
of  right. 

The  employment  of  the  forces  which  serve  as  means 
for  the  realization  of  our  interests  exhibits  itself  most  fre- 
quently in  the  way  of  acts.  For  this  reason  some  jurists 
have  considered  acts  as  the  sole  objects  of  right.  It  is, 
however,  a  conception  which  we  cannot  admit,  for,  if  we 
examine  it  closely,  it  results  in  some  consequences  impos- 
sible to  sustain. 

Take  the  case,  first,  where  rights  belong  to  persons 
who  cannot  legally  perform  any  act,  for  example  an 
infant  or  a  demented  person.  In  such  case  it  is  an- 
other person,  a  guardian,  who  does  for  them  the  acts 
necessary  for  the  preservation  of  their  estates.  Con- 


OBJECTIVE  AND  SUBJECTIVE  217 

sequently  in  recognizing  acts  as  the  sole  object  of 
right  it  would  become  necessary  to  admit  that  the  object 
of  certain  rights,  rights  of  property  for  example,  may 
vary  according  to  their  subject.  If  the  holder  of  a 
right  of  property  carrying  with  it  a  certain  obligation 
is  a  person  of  full  capacity,  the  object  of  the  right  corre- 
sponding to  this  obligation  is  certainly  the  personal 
action  of  the  owner,  but  if  he  is  not  a  person  of  full  ca- 
pacity, the  object  of  this  same  right  is  no  longer  his  per- 
sonal action,  but  only  that  of  another,  his  guardian  for 
example. 

We  see  that  there  are  two  altogether  different  objects 
in  the  same  right.  If  we  do  not  consider  the  acts  of  the 
guardian  as  the  object  of  the  right,  then  this  right,  as 
long  as  it  relates  to  one  without  legal  capacity,  is  with- 
out an  object,  for  an  infant  at  the  breast  can  of  himself 
do  nothing  in  the  way  of  acts  necessary  for  realizing  the 
use  of  the  goods  belonging  to  him. 

The  forces  which  are  the  objects  of  rights  are  exceed- 
ingly various,  both  in  their  own  nature  and  according  to 
the  persons  who  are  the  subjects  of  such  right.  In  the 
legal  point  of  view  the  distinction  of  the  nature  of  the 
forces  has  no  importance,  but  the  connection  between  the 
forces  and  the  bearer  of  the  right  has  some  effect  over  the 
character  even  of  the  right.  The  objects  of  the  right  are 
classified  according  to  this  connection. 

We  distinguish  four  categories  of  objects:  first,  the  per- 
sonal forces  of  the  subject;  second,  the  forces  of  nature; 
third,  the  powers  of  some  other  person;  fourth,  the  forces 
of  society. 

Each  of  these  objects  has  a  different  connection  with 
the  subject  of  the  right.  Personal  forces  are  the  inalien- 
able property  of  the  bearer  of  the  right.  They  are  cre- 
ated at  the  time  of  his  birth,  and  their  division  among 
men  is  the  work  of  nature  herself.  The  law  does  not  give 
to  man  the  use  of  these  forces,  but  limits  and  protects 


218  THEORY  OP  LAW 

them.  The  powers  of  other  men  are  not  created  for 
our  use  and  bestowed  upon  us  by  nature  herself,  for 
our  profit,  but  to  obtain  their  use  we  must  employ 
the  means  set  at  our  disposal  by  the  law.  These  forces, 
being  intimately  connected  with  human  personality,  this 
very  connection  makes  necessary  a  limitation  of  each 
one's  rights  over  their  object,  for  if  the  right  was  un- 
limited by  hypothesis,  it  might  result  in  a  right  not 
only  over  another  man's  power,  but  over  his  very 
person. 

Man  can  make  use  of  nature's  forces  so  far  as  they  are 
exhibited  in  things.  These  things  are  not  equally  dis- 
tributed among  men  by  nature;  they  possess  no  direct 
connection  with  the  human  person.  This  is  why  legal 
rules  not  only  fix  the  usage  of  these  things,  but  also  fix 
the  principles  of  their  distribution  amongst  men.  These 
rights  over  things  are  the  most  complete  and  absolute  of 
all  rights. 

The  forces  of  society  belong  to  no  individual,  but  to 
society  as  a  whole  and  present  this  characteristic  pecu- 
liarity, that  each  individual  as  a  member  of  society  is 
subject  necessarily  to  the  action  of  its  forces. 

The  use  of  personal  powers,  physical  and  moral,  is  the 
prime  necessary  condition  for  the  realization  of  our  inter- 
ests, but  this  usage  may  at  the  very  start  have  for  conse- 
quence the  preventing  of  the  realization  of  the  interests 
of  another.  It  is  necessary,  then,  to  apply  certain  re- 
strictions to  the  use  of  these  personal  powers,  and,  as 
this  usage  is  manifested  always  by  some  act  of  the  man, 
these  restrictions  cannot  be  other  than  restrictions  upon 
the  liberty  of  human  actions. 

In  the  second  place,  the  activity  of  other  men  may  also 
cause  hindrances  to  the  use  of  our  own  personal  powers. 
There  is  need,  then,  of  guaranteeing  by  legal  rules  the 
use  of  personal  power,  in  imposing  upon  others  a  corre- 
sponding obligation. 


OBJECTIVE  AND  SUBJECTIVE  219 

According  to  a  rule  common  to  all  juridical  restric- 
tions, it  is  only  those  actions  which  bring  about  an  ex- 
ternal realization  of  our  thoughts  and  our  desires,  which 
produce  changes  in  the  external  environment,  that  are 
subjected  to  such  restrictions,  for  only  such  actions  can 
bring  about  any  hindrance  to  the  realization  of  other 
men's  interests.  An  action  amounting  only  to  a  mani- 
festation of  thought  without  tending  towards  its  realiza- 
tion would  not  be  subjected  to  such  a  restriction.  The 
simple  manifestation  of  the  intention  to  commit  a  crime 
is  not  punishable,  excepting  always  the  case  where  the 
form  of  manifestation  is  itself  an  assault  upon  the  inter- 
ests of  others.  Thus,  it  is  forbidden  to  express  an 
opinion  as  to  another  having  an  offensive  form.  It  is  for- 
bidden, also,  to  show  under  the  form  of  menace  a  desire 
to  do  that  which  the  law  forbids.  The  manifestation  of 
ideas  by  the  press  or  the  public  tribune  is  subjected  to 
special  regulation,  since  in  these  particular  cases  the  mani- 
festation takes  a  very  general  scope. 

The  reader  cannot  know  in  advance  what  is  the  ques- 
tion treated  in  a  pamphlet  or  a  newspaper  article,  and 
after  reading  it  he  cannot  rid  himself  of  the  impression 
which  such  reading  has  produced.  It  is  the  same  with 
what  has  taken  place  in  the  casual  passer's  hearing  of  a 
public  discourse. 

The  conception  of  liberty  of  thought  is  in  a  general 
way  a  relatively  recent  one.  In  the  ancient  law,  on  the 
contrary,  even  the  simple  manifestation  of  the  thought 
was  sought  to  be  controlled.  In  former  times  it  was  be- 
lieved there  was  possibility  of  doing  harm  by  the  simple 
thought,  by  the  evil  eye,  as  they  said,  or  at  least  by 
words  to  which  were  attributed  some  of  the  force  of  acts 
designed  to  put  them  into  execution. 

The  employment  of  our  own  personal  forces  is,  then, 
guaranteed.  This  guarantee  has  for  its  purpose  the  pro- 
tecting of  our  life,  our  health,  that  of  body  as  well  as  that 


220  THEORY  OF  LAW 

of  mind.  It  happens  often  that  individual  powers  do 
not  suffice  for  the  realization  of  an  interest  and  that 
the  collaboration  of  a  number  of  individuals  is  neces- 
sary, and  thus  arise  rights  over  the  forces  of  other  men. 
The  modern  idea  of  right  does  not,  however,  admit  the 
existence  of  rights  over  the  very  person  of  a  man. 
It  admits  only  the  existence  of  rights  to  his  services, 
and  even  these  rights  have  very  frequently  no  absolute 
character. 

If  he  who  is  employed  to  do  an  act,  to  perform  some 
particular  service,  refuses  to  do  it,  he  may  not  be  con- 
strained. These  rights  have  a  special  character.  The 
employee  is  permitted  either  to  perform  the  act  or  to  in- 
demnify by  a  sum  of  money  his  employer.  Only  the 
right  of  the  state  over  the  services  due  from  its  citizens 
has  an  absolute  character,  such  as  the  obligation  to  mili- 
tary service. 

As  to  different  parts  of  the  human  body,  distinction 
must  be  made  between  those  which  are  separated  from 
it  and  those  not  so.  Thus,  the  hair  once  cut,  a  tooth 
once  extracted,  may  be  compared  to  any  other  object  be- 
cause this  hair  or  this  tooth  have  no  force,  no  means  of 
action  by  themselves,  once  they  are  separated  from  the 
man's  body. 

On  the  other  hand,  the  parts  which  are  not  detached 
cannot  be  subject  to  legal  rights  of  others,  can  be  sub- 
jected to  no  power  of  another,  for  no  rights  can  be  held 
over  the  human  body  or  its  members.  We  cannot  ac- 
quire a  right  of  property  in  another's  hair  not  yet  cut 
off,  or  in  another's  teeth  still  undetached.  No  right  can 
be  acquired  to  the  use  of  the  body  of  another  individual, 
of  a  monster,  a  dwarf  or  a  giant  for  example,  with  a 
view  of  exhibition.  Rights  can  be  acquired  only  over 
the  action  of  the  man,  the  promise  to  use  his  body  or 
some  parts  of  it,  but  if  he  refuses  this  usage,  he  cannot 
be  constrained  to  it;  he  can  only  be  required  to 


OBJECTIVE  AND  SUBJECTIVE  221 

find  an  indemnity  for  damages  resulting  from  his 
refusal. 

Besides  these  individual  powers,  the  general  human 
ones,  the  powers  of  nature  serve  also  as  means  for  the 
realization  of  human  interests.  The  action  of  natural 
forces  appears  always  in  some  form  of  physical  phe- 
nomena and  man  can  utilize  this  action  for  the  realiza- 
tion of  his  interests  only  if  he  possesses  the  matter  show- 
ing these  phenomena.  The  different  parts  of  matter  are 
things;  it  is  these  things  and  not  the  natural  forces  which 
are  the  direct  objects  of  right. 

All  things  cannot  be  objects  of  right,  but  those  only 
can  fill  this  role  which  are  subject  to  human  influence. 
For  this  reason  the  stars,  the  firmament,  cannot  be  ob- 
jects of  right.  There  are  some  things  which  can  be 
objects  of  right  only  in  connection  with  particular  per- 
sons. There  are  others  whose  use  by  all  is  authorized  by 
nature,  like  air,  running  water,  the  high  sea.  These  are 
res  communes  omnium. 

Certain  things  which  by  their  nature  are  capable  of  be- 
coming objects  of  private  possession  are,  however,  not 
left  by  positive  legislation  in  the  domain  of  private 
things.  These  are  public  things,  the  res  publics  qua 
extra  commercium  sunt,  for  example,  roads  and  highways. 
Physically,  they  are  susceptible  to  private  ownership, 
but  such  a  situation  is  regarded  as  incompatible  with 
their  design.  Among  these  public  things  we  should 
distinguish  those  which  are  outside  of  the  private 
domain  only  accidentally.  These  are  such  as  be- 
long to  nobody,  res  nullius  qua  extra  patrimonium  nos- 
trum sunt. 

In  the  same  thing  may  appear  the  action  of  not  merely 
one,  but  of  several  forces.  The  law  may  permit  to  a 
man  the  use  of  all  the  powers  in  a  given  thing,  or  only  of 
a  part  of  its  manifestations.  In  the  first  case,  as  is  read- 
ily seen,  the  power  of  the  person  over  the  thing  is  at 


222  THEORY   OF  LAW 

its  fullest  extent.  It  is  the  complete  right  of  property, 
its  dominium. 

The  owner  may  employ  all  the  powers  of  a  thing  which 
belongs  to  him,  at  least  so  far  as  these  powers  have  not 
been  excluded  from  the  permitted  use  of  the  thing. 
On  the  contrary,  a  person  who  has  only  the  right  of  en- 
joyment, who  has  not  over  the  thing  the  right  of 
property,  can  use  the  thing  only  within  the  limits  which 
this  right  of  usage  confers  upon  him.  The  same  thing, 
therefore,  may  be  at  the  same  time  susceptible  of  a 
right  of  ownership  and  of  other  less  complete  rights 
than  this,  right  of  usage,  rights  of  enjoyment,  jura  in 
re  aliena. 

To  the  distinctions  between  the  different  physical 
properties  of  things  it  is  necessary  to  add  the  different 
legal  properties  of  those  things.  In  legal  language,  for 
example,  a  great  difference  is  established  between  mov- 
able goods  and  immovable  goods. 

Immovable  goods  are  the  soil  and  everything  which  is 
completely  adherent  to  it,  as  trees  and  houses.  All 
others  are  movable  goods.  Here  is  a  distinction  which 
has  serious  consequences  in  acts  of  division,  for  example, 
in  rules  of  inheritance  and  in  the  guarantees  furnished  by 
law. 

The  thing,  being  a  portion  of  matter,  is  in  its  turn  di- 
vided into  portions.  This  notion  of  portions  of  matter 
has  only  a  very  relative  force.  The  part  can  be  consid- 
ered at  the  same  time  as  dependent  upon  the  whole  ob- 
ject, or  as  itself  forming  a  distinct  whole.  One  readily 
acquires  an  idea  of  things  composed  of  parts  and  forming 
a  whole,  universitas  rerum,  which,  formed  out  of  many 
things,  serves,  however,  only  for  the  realization  of  a  sin- 
gle interest.  Legally,  this  whole  is  considered  as  one 
single  thing,  as  in  the  case  of  shops  and  stores  and  their 
merchandise,  flocks,  etc.  The  connection  of  these  differ- 
ent things  with  each  other  is  sometimes  a  relation  of 


OBJECTIVE  AND   SUBJECTIVE  223 

subordination,  and  it  results  that  one  thing  is  an  attri- 
bute of  another;  the  door,  for  example,  may  be  consid- 
ered as  an  attribute  of  the  house.  We  call  attributes  cer- 
tain things  without  which  the  principal  thing  could  not 
answer  its  purpose,  the  design  for  which  it  was  organ- 
ized; as  for  example,  a  carriage  deprived  of  its  wheels. 
The  attributes  are  always  subject  to  the  same  disposition 
as  the  principal  object. 

The  final  category  of  objects  of  right  which  we  have 
enumerated  is  that  formed  by  the  forces  of  society.  We 
must  distinguish  them  from  the  powers  of  the  indi- 
vidual. In  reality  this  force  of  society  is  not,  as  one 
might  suppose,  the  sum  of  the  forces  of  each  of  the 
members  who  compose  it;  it  is  a  much  greater  force 
than  that.  The  explanation  is  found  in  the  organiza- 
tion of  the  society,  which  unites  the  individual  forces 
in  the  habit  of  each  one's  submitting  himself  to  the 
requirements  of  the  social  life  and  in  the  moral  author- 
ity which  every  society  has  with  regard  to  its  own 
members. 

The  relations  between  men  have  multiple  forms.  The 
smaller  society  is  subject  to  the  greater  and  the  weaker 
of  two  powers  can  be  very  often  regarded  as  a  force  de- 
pendent upon  the  greater. 

Finally,  all  human  associations  are  reducible  to  one,  to 
the  greater  society  par  excellence,  to  humanity.  Human- 
ity embraces  all  societies  and  absorbs  them  into  it- 
self. But  all  societies  have  not  an  evident  external 
influence.  Only  those  which  are  organized  possess  this. 
The  force  of  those  societies  which  act  directly  upon  each 
of  their  members  can  be  the  object  of  right.  The  most 
important  of  these  societies  are  the  church,  the  state, 
and  the  family. 


224  THEORY  OF  LAW 


Section  31.     Juridical  Facts 

IHERING.     Geist,  III.     §53. 

ZITELMANN.     Irrthum  und  Rechtsgeschaft.     s.  200  ff. 
THON.    Rechtsnorm    und    subjektives    Recht.      ss.    71    S.      ss. 
325  ff. 

Juridical  relations  are  not  unchangeable.  They  arise, 
evolve,  and  disappear.  On  what  do  these  different 
changes  depend? 

Every  legal  relation  supposes  necessarily  a  right  and 
an  obligation  resulting  from  the  application  of  legal  rules. 
We  have  already  seen  that  this  application  depends  upon 
certain  facts  fixed  generally  by  the  hypothesis  under  con- 
sideration. 

Legal  relations,  then,  depend  upon  these  "juridical 
facts."  Generally,  indeed,  the  application  of  a  legal  rule 
gives  birth  to  several  of  them  and  not  to  one.  To  ac- 
quire, for  example,  a  right  to  property  by  possession 
there  is  necessary,  first,  the  intention  of  holding  the  thing 
by  proprietary  title;  second,  a  given  duration  of  such 
possession;  third,  an  uninterrupted  possession;  and  fourth, 
an  uncontested  possession.  It  is  only  when  these  four 
conditions  combine  that  possession  gives  birth  to  a  right 
of  property. 

A  combination  of  all  the  circumstances  necessary  for 
the  application  of  a  legal  rule  may  be  called  the  "content 
of  the  suppositions  of  fact,"  in  German,  Thatbestaiid. 
The  different  conditions  which  form  the  suppositions  of 
fact  may  pertain  either  to  external  facts  or  to  the  mind 
and  will  of  an  individual.  In  the  last  supposition  they 
can  exist  only  so  far  as  they  are  relations  between  human 
actions,  for  it  is  only  in  such  actions  that  the  human  will 
is  manifest. 

It  is  necessary,  then,  to  distinguish  between  the  "ob- 


OBJECTIVE  AND   SUBJECTIVE  225 

jective"  and  the  ''subjective"  content  of  suppositions  of 
fact.  So,  for  a  will  to  be  valid  there  are  necessary  be- 
sides certain  conditions  of  outward  form,  writing,  pres- 
ence of  a  certain  number  of  witnesses,  etc.,  certain  sub- 
jective conditions  on  the  part  of  the  testator,  sound  mind, 
sufficient  memory,  freedom,  etc.  The  combination  of 
conditions  of  form,  external  conditions,  constitutes  the 
objective  side  of  the  testament.  The  moral  conditions  of 
the  validity  of  the  testament  form,  on  the  other  hand,  its 
subjective  side. 

The  application  of  the  legal  rule  may  depend  merely 
upon  objective  conditions.  This  happens  when  the  jurid- 
ical facts  are  not  human  actions.  An  inheritance,  for  ex- 
ample, is  declared  open  by  the  simple  fact  of  the  death 
of  the  former  holder,  and  is  opened  for  the  advantage  of 
all  the  heirs  by  the  simple  fact  of  their  existence. 
There  is  no  subjective  condition.  The  law  does  not  in- 
terfere with  regard  to  facts  which  embrace  only  sub- 
jective conditions.  Indeed,  the  law  has  only  to  do  with 
ideas  which  have  already  received  their  application. 
These  alone  have  legal  importance.  We  easily  recog- 
nize, then,  in  every  application  of  law  two  elements, — 
the  subjective  one,  which  is  the  thought,  and  the  ob- 
jective one,  which  is  the  external  manifestation  of  that 
thought. 

Here,  then,  is  a  primary  distinction  to  be  made  among 
juridical  facts;  facts  which  are  exclusively  objective,  and 
actions  which  are  essentially  at  the  same  time  objective 
and  subjective. 

There  is  commonly  a  harmony  between  juridical  facts 
and  the  law.  It  may  happen,  however,  that  certain  of 
these  facts  are  opposed  to  it,  and  we  have,  then,  facts 
which  are  legal  and  others  which  are  illegal.  Hence,  a 
new  distinction  between  legal  facts  conformable  to  law, 
and  others  opposed  to  it. 

To  look  a  little  closer  at  the  distinctions  to  be  made 


226  THEORY   OF  LAW 

between  facts  and  acts  and  between  legal  and  illegal  facts 
we  may  class  them  in  four  categories:  first,  legal  facts; 
second,  legal  acts;  third,  illegal  facts;  and  fourth,  illegal 
acts.  Such  a  classification  presents,  however,  some  in- 
conveniences. 

It  is  the  truth  that  certain  of  the  legal  acts  are  juridi- 
cally considered  as  facts  because  their  objective  side  is  of 
little  importance.  These  acts,  whether  conscious  or  not, 
have  always  an  absolutely  identical  legal  weight;  for  ex- 
ample, the  destruction  of  a  thing  does  away  with  all  right 
over  it;  whether  this  destruction  was  voluntary  or  not, 
the  result  is  always  the  same. 

So,  actions  whose  legal  consequences  are  not  affected 
by  their  subjective  side  ought  to  be  classed  with  facts 
and  are  most  commonly  called  so,  juridical  facts  properly 
so  called.  Illegal  acts  alone  form  a  distinct  group,  whose 
juridical  importance  depends  specially  upon  the  inten- 
tion with  which  they  are  performed.  It  is  necessary, 
moreover,  to  observe  that  illegal  acts  have  juridical  im- 
portance only  so  far  as  they  give  rise  to  a  durable  illegal 
situation,  a  situation  requiring  the  re-establishment  of  a 
violated  right.  For  the  rest,  usually  instead  of  saying 
illegal  facts  we  say  illegal  condition,  and  more  commonly 
designate  illegal  acts  under  the  name  of  violations  of 
right. 

We  distinguish,  then,  four  categories  among  juridical 
facts:  first,  juridical  facts,  properly  so  called;  second, 
juridical  acts;  third,  illegal  states  or  conditions;  fourth, 
violations  of  right.  Juridical  facts,  properly  so  called, 
comprise  all  those  which  embrace  nothing  contrary  to 
legal  rules,  nothing  anti-legal,  and  whose  accomplish- 
ment does  not  bring  with  it  any  creation  of  new  rights 
or,  rather,  any  change  or  extinction  of  rights  or  obliga- 
tions already  existing.  Rights  and  obligations  never 
have  importance  except  as  they  serve  to  delimit 
the  contending  interests;  it  is  only  facts  bringing  for- 


OBJECTIVE  AND  SUBJECTIVE  227 

ward  new  interests  which  will  be  determined  by  new 
laws.  So,  on  the  birth  within  the  state's  territory  of  a 
man  whose  father  was  a  citizen  of  that  state,  it  is  pre- 
sumed that  the  individual  takes  the  nationality  of  the 
country  of  his  birth. 

The  fact  of  not  using  a  right  for  a  long  while  gener- 
ally indicates  that  an  interest  formerly  in  existence  exists 
no  longer,  and  that  in  disappearing  it  has  taken  with  it 
the  right.  All  extinctive  prescriptions  are  established 
upon  this  idea. 

In  other  cases,  the  juridical  fact  constitutes  the  cause 
which  puts  an  end  to  the  existence  of  an  interest  or 
modifies  it.  Thus,  a  person's  death  deprives  him  of 
all  interest  and  all  right.  All  interests  in  the  mean- 
while are  not  bound  up  thus  closely  with  specific  facts. 
We  can  even  say  that  more  frequently  interests  do  not 
present  through  facts  specific  indications  of  the  birth, 
the  modification,  or  the  extinction  of  a  right.  In  these 
cases  the  hypothesis  of  the  rule  does  not  contain  its 
index,  and  the  application  of  the  rule  is  subordinated 
to  the  presence  of  certain  interests.  The  work  of  adap- 
tation of  the  rule  to  the  interest  is  performed  by  those 
of  whom  duty  or  their  own  personal  interest  requires 
it.  The  interests,  which  call  most  frequently  for  the 
performance  of  a  juridical  act,  usually  exhibit  them- 
selves in  the  specific  act,  especially  when  it  has  for  its 
purpose  the  maintenance  of  the  existence  of  the  interest. 
These  interests  are  difficult  to  recognize  in  fortuitous 
acts  and  in  those  compelled  by  overwhelming  force. 
Consequently,  the  application  of  rules  delimiting  inter- 
ests depends  either  upon  external  signs,  which  reveal 
themselves  readily,  or  upon  special  acts  having  its  pur- 
pose; that  is  to  say,  upon  acts  performed  with  a  view 
to  bring  about  their  application. 

These  juridical  acts  are  of  two  kinds.  If  their  accom- 
plishment is  left  to  private  persons  with  an  object  simply 


228  THEORY  OF  LAW 

personal,  they  are  contracts;  in  the  Roman  law,  negotia 
juris;  if,  on  the  contrary,  their  accomplishment  depends 
upon  functionaries  charged  with  this  care  by  their  duty 
or  their  functions,  they  are  orders,  decrees,  Verfugungen. 
Both  may  be  unilateral  or  bilateral.  The  first  are  those 
which  contain  the  manifestation  of  the  will  of  but  one 
of  the  parties  to  the  agreement;  the  second,  those  which 
contain  the  manifestation  of  the  will  of  two  or  of  several 
parties. 

A  unilateral  contract  relates  only  to  the  rights  of  the 
executing  parties  because  it  is  those  rights  alone  which 
such  a  contract  can  regulate.  We  cite  as  examples  of 
this  category  of  contracts  the  testament  and  the  con- 
tracting of  ourself  for  service.  The  unilateral  order  of 
administration  acting  as  authority  can  affect  the  rights 
of  individuals,  can  restrain  or  even  suppress  them. 

A  bilateral  contract  is  one  having  for  its  base  an  agree- 
ment of  independent  persons  one  with  the  other  and 
not  connected  by  any  bond  of  subordination.  The  bi- 
lateral order,  on  the  contrary,  has  not  the  same  character. 
Of  the  two  wills  forming  it  the  one  is  the  master  and 
the  other  the  subject.  The  two  wills  are  brought  into 
connection,  the  one  in  order  to  demand,  to  solicit,  the 
other  to  authorize,  agree  and  ratify. 

The  performance  of  every  contract,  just  as  of  every 
order,  requires  certain  relative  conditions;  some  as  to 
the  subject  who  shall  perform  the  contract  or  the  order, 
others  as  to  the  form  which  the  contract  or  order  should 
assume.  The  capacity  of  forming  a  contract  we  call 
capacity  to  contract.  Minors,  the  insane,  those  who 
have  lost  their  civil  rights,  do  not  possess  this  contrac- 
tual capacity. 

It  is  necessary  also  to  indicate  certain  acts  for  which 
there  exist  special  restrictions  and  which  require  a  special 
capacity,  the  act  if  performed  by  an  incapable  individual 
being  void. 


OBJECTIVE   AND  SUBJECTIVE  229 

Capacity  to  give  authority  to  orders  or  decrees  con- 
stitutes competency.  General  competency  is  impossible, 
and  the  order  performed  outside  of  its  assigned  limits, 
determined  by  the  rules  of  administration,  has  no  more 
validity  than  the  contract  of  an  incapable. 

For  some  juridical  actions  special  forms  have  been  es- 
tablished. Sometimes  these  forms  are  not  closely  oblig- 
atory and  serve  only  to  give  greater  force  to  the  con- 
tract or  to  establish  the  proof  for  the  future  of  its  due 
execution.  These  forms  are  established  not  only  with 
a  view  to  proof,  corroboration,  but  sometimes  such  forms 
are  necessary  attributes  of  the  act  itself.  Without  them 
the  act  has  no  juridical  value.  It  is  considered  as  void 
and  as  never  having  existed.  These  are  necessary  forms 
to  the  act  itself,  corpus  negotii. 

The  written  form  of  a  bill  of  exchange  may  serve  as 
an  example  for  forms  of  the  first  category.  A  loan  of 
money  may  exist  without  written  proof;  if  the  debtor 
acknowledges  his  duty  there  is  no  need  of  any  writing. 
As  example  of  form  which  makes  an  integral  part  of  the 
act  itself,  that  required  for  a  purchase  or  sale  of  real 
property  may  be  cited.  This  sale  or  purchase  must  be 
evidenced  by  writing,  without  which  it  is  not  recognized 
as  valid  even  when  nobody  contests  its  existence.  With 
regard  to  the  orders  of  government  or  administration 
this  distinction  applies  also.  Some  forms  are  imposed 
only  with  a  view  to  convenience  and  their  omission  may 
bring  disciplinary  penalties,  but  the  order  be  none  the 
less  valid.  Other  formalities,  on  the  contrary,  are  abso- 
lutely necessary  that  the  order  may  be  valid  and  obliga- 
tory upon  the  citizens. 

By  juridical  representation  certain  acts  can  be  per- 
formed by  one  person  instead  of  another.  The  represen- 
tative performs  the  act  in  the  name  of  his  principal  and 
under  the  condition  that  all  the  juridical  consequences 
of  the  act  shall  belong  to  the  party  represented.  Juridical 


230  THEORY    OF    LAW 

representation  may  be  forced  or  voluntary.  The  repre- 
sentation is  said  to  be  forced  when  it  is  on  behalf  of 
persons  who  cannot  themselves  do  legal  acts,  who,  as 
we  have  already  stated,  have  no  contractual  capacity. 
It  is  said  to  be  voluntary  when  a  perfectly  capable  person 
instead  of  doing  an  act  himself  charges  some  other  per- 
son with  doing  it  in  his  place. 

The  illegal  situation  and  the  violation  of  right  have 
this  in  common,  that  both  are  in  opposition  to  the  legal 
rule.  They  present  always  an  important  difference  as 
follows:  The  requirements  of  legal  rules  address  them- 
selves to  the  deliberate  will  of  man.  Law  cannot  in 
fact  control  the  actions,  the  unconscious  forces  of  nature, 
so  only  man's  will  can  violate  a  right.  Nothing  which 
is  the  work  of  other  forces  can  amount  to  a  violation 
of  right. 

The  unconscious  forces  of  nature  may  meanwhile 
cause  a  condition  of  things  in  open  opposition  to  the 
requirements  of  a  legal  rule.  The  wind,  for  example, 
may  displace  an  object  and  carry  it  over  into  another's 
domain.  We  can  class  with  these  cases,  those  where  the 
man  acts  unconsciously, — in  an  attack  of  insanity,  for 
example.  In  all  these  cases  there  is  no  violation  of  right ; 
there  is  only  an  illegal  condition.  The  illegal  condition 
requires  always  the  re-establishment  of  a  disturbed  right, 
the  restoration  of  a  condition  which  existed  before  and 
which  conforms  to  the  requirements  of  the  legal  rule. 
This  right  exists  always  for  the  advantage  of  the  one 
whose  right  has  been  disturbed. 

The  violation  of  right  brings,  besides,  other  conse- 
quences. It  is  a  great  danger  indeed  for  a  legal  rule 
that  by  non-compliance  its  authority  is  seriously  assailed 
and  with  it  that  of  law  in  general.  Hence,  the  necessity 
of  the  sanction  to  avoid  the  recurrence  of  wrongful  acts. 

A  conscious  violation  of  law  supposes  always  fault  on 
the  part  of  the  author  of  the  wrong  and  requires  an  in- 


OBJECTIVE  AND  SUBJECTIVE  231 

demnity.  Finally,  the  author  of  the  wrong  may  exhibit  a 
condition  of  mind  which  requires  to  be  corrected. 

Punishment  inflicted  on  the  author  of  the  wrong 
serves  to  realize  three  ends, — to  prevent  the  wrong;  to 
furnish  indemnity  by  the  delinquent  to  the  injured 
party;  to  correct  the  delinquent.  But  all  violations  of 
law  are  not  punishable.  Only  those  violations  which 
involve  features  of  a  general  interest  ought  to  be  pun- 
ished; the  others,  those  which  comprise  only  an  assault 
upon  rights  of  individuals,  upon  rights  of  private  inter- 
est, require  only  an  indemnity  to  repair  the  damage 
caused. 

Violations  of  law  which  result  in  punishment  are  called 
crimes.  To  constitute  a  crime  there  must  be  a  con- 
scious, intended  act  violating  the  law,  and  one  ought 
to  distinguish  between  premeditated  crime,  which  is  one 
having  for  its  purpose  the  violation  of  a  right,  and  the 
infraction  committed  by  imprudence,  which  ought,  how- 
ever, to  be  punished  also  because  it  results  in  consequences 
contrary  to  law. 


CHAPTER  III 
PUBLIC  AND  PRIVATE  LAW 

Section  32.     Classification  of  Rights   According   to    their 

Matter 

SAVIGNY.     System  I.     s.  23. 

STAHL.     Die  Philosophic  des  Rechts,  II.     s.  300. 

AHRENS.     Encyclopadie.     s.  117. 

Juridical  relations  are  extremely  various.  The  detailed 
study  of  their  groups  constitutes  the  very  science  of 
law. 

The  general  study  of  law  cannot  do  without  a  pro- 
found examination  of  the  fundamental  peculiarities  of 
each  group  of  special  rights,  and  for  this  purpose  a  gen- 
eral classification  of  juridical  relations  is  necessary. 
A  fundamental  division  universally  recognized  is  that 
into  public  and  private  law.1  There  are  numerous  dis- 
cussions, however,  as  to  the  exact  point  of  distinction 
between  them.  The  Romans  placed  it  in  the  character 
of  the  interests  protected  by  law;  the  ensemble,  the 
totality,  of  public  interests  protected,  constituted  public 
law,  and  that  of  private  interests  formed  private  law. 
"Publicum  jus  est  [Inst.  Ulpian.  II.  §2,  De  Justitia  et 
Jure,]  quod  ad  statum  rei  Romance  special,  privatum,  quod 
ad  singulorum  utilitatem  pertinet,  sunt  enim  qu&dam 
publice  utilia  qucedam  privatim" 

Down  to  our  times  this  definition  has  found  partisans. 
Bruns  (Holzendorff's  Encyclopadie  3  Auf.  s.  340)  and 
Neuner  (Privatrechtsverhaltnisse,  s.  1)  have  adopted  it. 

1  By  the  side  of  public  and  private  law  are  recognized  ecclesiastical  (Walter), 
international  (Warnkonig),  and  social  (Mohl,  Rosier)  law. 


OBJECTIVE  AND  SUBJECTIVE  233 

It  has  been  resisted,  however,  for  a  long  time  by  a  good 
many  jurists.  This  Roman  definition  does  not  define 
anything  at  all.  It  does  not  delimit  or  determine  in 
any  way  the  different  regions  of  law.  Interests  cannot 
be  opposed  to  one  another  as  being  public  or  private. 
They  can  exist  nowhere  except  in  the  man,  and  every 
general  interest  is  nothing  but  a  combination  of  in- 
dividual interests.  We  can  say  in  a  certain  sense  that 
the  whole  law  is  created  for  the  protection  of  the  in- 
terests of  individuals,  that  is  to  say,  private  interests. 
Moreover,  legal  protection  is  only  extended  to  those 
interests  of  individuals  which  have  a  more  or  less  gen- 
eral scope,  which  relate,  for  example,  to  a  whole  group 
of  individuals,  as  physicians,  or  to  a  person  whose  in- 
terest, like  that  of  a  monarch,  by  reason  of  his  impor- 
tant position,  is  of  a  general  order.  In  this  sense  we 
might  say  that  the  law  protects  only  general  interests. 

We  can  distinguish  again  between  public  interests, 
and  divide  them  in  their  turn;  but,  without  insisting 
upon  the  altogether  relative  character  which  such  a 
distinction  presents,  it  may  be  said  that  it  does  not 
correspond  with  any  actually  existing.  It  cannot  be 
established,  as  a  rule,  that  public  law  is  concerned  with 
more  general  interests  and  private  law  with  those  which 
are  less  so. 

Faults  committed  in  the  course  of  a  campaign  by  a 
furnisher  of  supplies,  faults  which  may  lead  to  a  fam- 
ine in  a  whole  army  corps  and  bring  about  its  defeat, 
have  a  much  more  general  interest  than  the  election 
of  a  member  of  some  municipal  council;  and,  mean- 
while, in  the  first  case,  the  market  for  supplies  is  under 
the  control  of  the  civil  law,  and  in  the  second,  the  nom- 
ination and  election  of  the  functionary  under  that  of 
public  law.  So  again,  the  organization  of  a  ministry 
presents  an  interest  incomparably  less  important  and 
less  general  than  the  regulation  of  the  conveyance  of 


234  THEORY   OF  LAW 

real  estate  or  of  hiring  for  service,  and  yet  in  the  first 
case  we  are  in  the  domain  of  public  law  and  in  the  sec- 
ond that  of  private  law.  The  insufficiency  of  Ulpian's 
definition,  its  lack  of  precision,  has  induced  many  at- 
tempts to  reach  a  more  precise  one. 

We  will  examine  first  the  classification  proposed  by 
Savigny.  His  system,  accepted  by  Stahl,  might  be 
called  the  teleological  system.  It  is  a  definition  bor- 
rowed partly  from  that  of  Ulpian,  but  distinguished  from 
it  radically,  however,  by  certain  points. 

Ulpian  defined  the  law  according  to  the  interests  which 
it  regulated.  Savigny  and  Stahl,  on  the  other  hand, 
distinguish  legal  relations  according  to  their  purpose. 
In  public  law,  according  to  Savigny,  the  state  is  the 
purpose,  the  individual  holds  only  a  secondary  place. 
The  contrary  is  the  fact  in  the  civil  law.  The  individual 
is  the  end,  and  the  state  only  a  means. 

Stahl  says  almost  the  same:  "Certain  legal  relations 
have  as  their  end  the  satisfaction  of  individual  needs; 
others  seek  to  establish  a  combination  of  men  under  a 
single  authority  and  to  cause  them  to  live  in  that  unity." 

This  distinction  between  legal  relations  according  to 
their  purpose  has  been  quite  recently  developed  by 
Ihering  in  his  work  Das  Zweck  im  Recht  (Bd.  I,  1877?  s. 
452).  He  indicates  its  real  meaning,  and  distinguishes 
the  relations  by  their  purpose  into  three  classes,  accord- 
ing as  the  beneficiary  in  view  is  the  individual,  society, 
or  the  state. 

But  this  distinction  is  not  for  Ihering  a  fundamental 
one  in  law,  and  he  shows  that  each  juridical  institution 
may  have  as  its  beneficiary  the  individual,  the  society, 
or  the  state.  For  example,  property  can  be  private, 
social  or  public.  This  distinction,  then,  cannot  be  a  fun- 
damental one  in  a  legal  system.  We  seek,  in  fact,  a  clas- 
sification of  institutions,  and  not  a  classification  of  forms 
which  the  same  institution  may  take  in  succession. 


OBJECTIVE  AND   SUBJECTIVE  235 

Savigny  and  Stahl  have  tried  in  their  classification  to 
group  together  two  schemes  of  classification,  up  to  that 
time  distinct,  the  one  established  according  to  the  in- 
terest regulated  by  the  law,  and  the  other  according  to 
the  position  of  the  subject,  regarded  sometimes  as  an 
independent  individual,  sometimes  as  a  member  of  a 
social  organization.  Ahrens  has  equally  tried  the  same 
combination  of  these  different  processes  of  classification, 
and  opposes  the  immediate  purpose  to  the  final  one. 
The  final  end  of  all  law  is  the  human  personality,  but 
the  human  personality  can  be  at  the  same  time  the  im- 
mediate end  of  a  juridical  relation,  and  this  immediate 
end  is  a  relation  of  private  law.  If  it  is,  on  the  other 
hand,  society  or  the  state  which  is  the  immediate  object 
of  the  legal  relation,  we  find  ourselves  then  in  the  pres- 
ence of  a  relation  of  public  law. 

So,  then,  the  purpose,  the  final  function  of  pub- 
lic and  private  legal  relations,  is  the  same.  It  is 
only  the  means  employed  for  the  accomplishment 
of  this  purpose,  for  its  realization,  which  is  varied. 
In  private  law  this  purpose  is  realized  by  the  in- 
dividual determination;  in  public,  by  the  collective  act 
of  the  entire  society. 

Ahrens'  classification  is  insufficient.  His  theory,  like 
Stahl's  as  well  as  Savigny's,  does  not  explain  how  it 
happens  that  the  state  is  so  frequently  the  subject  of 
relations  of  a  purely  civil  and  private  character. 

When  the  state  buys,  sells,  exchanges,  or  hires,  it  is 
itself  the  object  and  not  the  means  (Savigny) ;  the  fur- 
nishing of  boots  for  the  army  does  not  have  for  its  end, 
evidently,  the  satisfaction  of  an  individual  (Stahl) ;  and 
the  end  sought  is  not  attained  by  individual  volition, 
but  by  the  activity  of  the  entire  state,  which  pays  the 
expense  of  furnishing  them  (Ahrens). 

Finally,  Ahrens  seems  to  forget  that  juridical  pro- 
tection, whatever  be  the  interest  which  it  concerns, 


236  THEORY   OF   LAW 

supposes  the  collaboration  of  the  whole  society  and  not 
the  mere  determination  of  an  individual. 

These  unfortunate  attempts  to  adapt  the  definition 
left  us  by  the  Romans  have  urged  several  modern  jur- 
ists, especially  Russians,  to  wholly  abandon  the  Roman 
conception.  Some  have  sought  the  basis  for  the  dis- 
tinction between  public  and  private  law  in  the  dis- 
tinction of  interests  according  as  they  have  or  do  not 
have  a  patrimonial  character.  Others  have  seen  espe- 
cially in  private  law  a  right  of  disposition.  The  parti- 
sans of  the  first  opinion  are  Mayer,  Oumov,  and  espe- 
cially Kaveline;  the  second  opinion  has  been  maintained 
by  Zitovich. 

Kaveline  1  thinks  that  the  distinction  ordinarily  made 
between  public  law  and  private  law  rests  upon  no  theo- 
retical foundation.  Private  law  comprehends  some  parts 
totally  different  from  each  other,  and  this  can  be  ex- 
plained only  because  it  is  transmitted  to  us  thus  com- 
bined by  the  Romans.  The  one  of  these  different  parts 
presenting  a  certain  degree  of  unity,  having  some  rules 
from  pretty  much  the  same  source,  has  been  combined 
under  the  name  of  civil  law,  that  is,  the  jus  civile  of 
the  Romans,  a  term  which  they  gave  to  their  whole 
law. 

In  our  day,  in  Russia  particularly,  there  is  no  reason 
to  keep  this  group  intact  and  apply  to  it  the  same  name 
as  in  the  ancient  classification,  since  today  civil  rela- 
tions are  no  longer  determined  by  the  Roman  law. 
Instead  of  this  classification,  with  its  at  present  purely 
historic  importance,  Kaveline  proposes  a  classification 
which  he  thinks  more  rational  and  at  the  same  time 
more  simple.  His  classification  has  for  its  base  the 
distinction  which  he  establishes  between  patrimonial 
rights  and  all  other  rights.  The  modern  civil  law,  says 

i  "What  the  Civil  Law?"  1864.  "What  is  Private  Law's  Place  in  the  System 
of  Law  in  General?"  (Journal  of  Civil  and  Penal  Law,  1880.) 


OBJECTIVE  AND   SUBJECTIVE  237 

he,  is  the  mass  of  laws  affecting  our  patrimony.  It 
is  necessary  to  exclude  from  it  all  the  legal  relations 
which  have  no  patrimonial  character,  as  for  example, 
the  family  relations. 

The  civil  law  thus  understood  according  to  Kaveline 
ought  to  embrace  the  totality  of  relations  affecting  any 
title  to  the  patrimony.  A  good  many  legal  relations 
which  are  classed  nowadays  in  the  public  law  ought,  he 
thinks,  to  be  put  into  the  private  law,  as  for  example 
the  laws  as  to  taxes,  penalties,  and  the  privileges  and 
compensations  of  functionaries. 

Such  a  classification  has  in  its  favor  an  apparent  sim- 
plicity and  clearness.  A  careful  examination  shows  us, 
however,  that  it  is  scarcely  admissible.  It  is  not  pos- 
sible to  conclude  with  Kaveline  that  the  modern  con- 
ception of  law  is  due  simply  to  chance,  that  it  rests 
upon  no  rational  basis.  Even  if  it  were  true,  as  Kave- 
line affirms,  that  the  civil  law  in  its  actual  condition 
offers  only  an  agglomeration  of  parts  of  law  more  or 
less  distinct,  combined  together  by  the  Roman  law,  this 
agglomeration,  we  are  convinced,  is  not  the  work  of 
chance. 

It  is  because  these  different  laws  continued  always 
to  answer  to  the  requirements  of  social  life  that  they 
have  been  preserved,  and  it  is  only  that  which  is  in- 
dispensable in  all  legislation  which  has  been  transmitted 
to  us  by  the  Roman  law. 

The  private  civil  law  is  precisely  that  part  of  it  which 
exhibits  the  greatest  unity.  It  is  in  the  civil  law  that 
the  least  trace  is  left  of  the  vanished  years  and  the  nu- 
merous differences  between  races.  This  suffices  to  require 
us  to  make  of  the  rules  which  constitute  it,  and  of  the 
relations  which  it  governs,  a  group  apart,  a  distinct 
category.  Moreover,  as  Mouromtzev  has  already  shown, 
it  is  wrong  to  pretend  that  the  actual  civil  law  is  iden- 
tical with  that  which  we  have  received  from  the  Romans. 


238  THEORY   OF  LAW 

Moreover,  it  is  only  starting  with  the  XVI  century  that 
the  bringing  together  of  the  jus  privatum  and  the  jus 
gentium  has  been  attempted. 

There  are  institutions,  the  bill  of  exchange,  for  ex- 
ample, which  were  quite  unknown  to  the  Roman  law. 
It  is  not,  then,  precisely  correct  to  say  that  it  is  merely 
because  it  is  derived  from  a  common  source  that  the 
civil  and  private  law  has  been  classified  as  it  actually  is. 

We  should  observe,  besides,  that  the  simplicity  and 
clearness  in  Kaveline's  classification  are  only  apparent. 
In  reality  to  separate  patrimonial  rights  from  rights 
which  are  not  so,  is  no  easy  thing.  All  rights,  per- 
sonal ones  as  well  as  others,  have  an  economic  scope 
and  touch  in  some  sort  material  interests  affecting  our 
patrimony.  Kaveline  places  in  the  private  civil  law 
some  relations,  considered  till  that  time  as  relations 
of  public  law;  for  example,  the  penalties  inflicted  by 
law.  But  who  does  not  see  that  other  penalties,  for 
example  that  of  deportation,  might  also  have  an  eco- 
nomic effect  bearing  upon  our  patrimony  and  some- 
times do  have  this,  as  their  chief  scope? 

Even  if  we  classify  in  the  private  civil  law  some  re- 
lations like  those  existing  between  the  state  and  its 
functionaries  1  from  the  point  of  view  of  their  powers, 
or  those  between  the  state  and  the  citizens2  from  the 
point  of  view  of  the  military  system,  and  of  taxes,  there 
is  no  reason  for  not  also  placing  in  the  private  civil  law 
some  relations  which  are  incontestably  relations  of  pub- 
lic law;  for  example,  the  rights  resulting  from  the  organ- 
ization of  the  government,  and  from  the  organization 
of  political  representation  as  established  in  the  country. 

Do  not  these  relations  offer  an  economic  side  at  the 
point  of  view,  for  example,  of  indemnities  to  which 
deputies  and  senators  are  entitled,  or  if  the  function  of 

1  Rights  over  Goods,  p.  326. 
» Ibidem,  p.  228. 


OBJECTIVE   AND   SUBJECTIVE  239 

these  representatives  of  the  people  is  gratuitous,  at  the 
point  of  view  of  the  expenses  which  are  caused  neces- 
sarily in  the  performance  of  their  duty? 

If  we  connect  with  private  civil  law  the  different  re- 
lations which  control  the  sustenance  of  the  poor,  it  is 
necessary  to  place  there  also  the  combination  of  disposi- 
tions with  regard  to  gratuitous  primary  instructions,  and 
so  on.  We  shall  come  by  this  method  easily  to  place 
in  private  civil  law  all  the  social  relations. 

The  classification  of  Kaveline,  besides,  lacks  preci- 
sion in  not  defining  the  "material  value"  of  patrimo- 
nial right,  which  is  the  juridical  relation  which  serves 
as  the  basis  of  this  whole  classification.  What  does  he 
mean  by  it?  He  gives  evidently  to  these  words  the 
meaning  which  the  economists  attribute  to  them,  but 
these  latter  employ  the  words  in  two  essentially  differ- 
ent meanings,  value  in  use,  and  value  in  exchange. 

To  the  idea  of  value  in  use  one  attaches  the  whole 
idea  of  the  importance  of  that  which  serves  in  one 
fashion  or  another  for  the  satisfaction  of  man's  needs. 
Wagner,  for  example,  considers  the  political  organiza- 
tion as  susceptible  of  being  measured  by  its  economic 
value.  Evidently  a  classification  based  upon  value  in 
use  cannot  be  applied  to  legal  relations.  Every  right, 
in  so  far  as  it  serves  as  a  means  for  the  realization  of 
human  interests,  can  be  considered  as  having  value  in 
this  sense. 

The  conception  of  value  in  exchange  is  more  limited. 
To  define  it,  savants  themselves  appeal  to  the  idea  of 
law.  Everything  which  may  be  the  object  of  a  private 
right  has  value  in  exchange.  When  slavery  existed,  man 
himself  had  such  value.  When  offices  and  employments 
were  subjects  of  commerce  under  the  system  of  selling 
offices,  these  charges  and  employments  had  also  their 
value  in  exchange.  If  land  by  any  chance  became  in- 
capable of  private  ownership,  on  that  day  it  would  no 


240  THEORY  OF  LAW 

longer  have  value  in  exchange.  The  distinction  between 
public  and  private  law  cannot,  then,  rest  upon  the  con- 
ception of  value  in  exchange  since  this  value  depends 
upon  that  very  distinction. 

Kaveline's  system  offers  serious  inconveniences  for  the 
study  of  law.  It  leads  necessarily  to  arbitrary  distinc- 
tions. It  results  in  separations  between  those  things 
which  constitute  naturally  part  of  the  same  branch  of 
law.  It  is  in  this  way  that  he  goes  on  to  separate  the 
recovery  of  a  ruler's  taxes  from  the  imposition  of  them; 
to  treat  in  two  different  parts  of  the  law  the  privileges 
assigned  to  functionaries,  and  the  theory  as  to  the  legal 
situation  of  such  functionaries  in  the  state.  It  is  impos- 
sible, meanwhile,  to  give  a  clear  explanation  of  this 
theory  without  speaking  of  the  privileges  of  function- 
aries and  their  rights  and  duties. 

Finally,  let  us  observe  that  in  his  definition  Kaveline 
gives  us  no  idea  of  what  the  public  law  is,  out  of  what 
materials  he  composes  it,  or  what  are  its  relations  with 
private  law. 

Zitovich  1  thinks  also  to  find  the  fundamental  distinc- 
tion between  public  and  private  law  in  the  economic 
nature  of  these  rights,  but  he  reaches  this  result  by  a 
quite  different  route  from  that  followed  by  Kaveline. 
According  to  him  private,  or  civil  law,  is  the  ensemble 
of  institutions,  of  rules  of  positive  right,  which  fix  the 
distribution  of  economic  wealth  at  a  given  time  or  among 
a  given  people,  or,  more  briefly,  the  civil  law  is  the  law 
of  distribution  (Verkehrsrecht) .  It  must  be  observed  that 
his  definition  does  not  exclude  from  the  civil  law  thus 
understood  the  relations  of  family  rights.  These  rela- 
tions, he  says,  are  in  reality  rights  of  distribution.  They 
indicate  in  a  precise  fashion  the  causes  which  lead  to 
the  distribution  of  wealth,  the  principal  of  these  causes 
being  inheritance.  Finally,  the  individual  who  very  often 

»  Course  in  Russian  Civil  Law,  I.     1878.     pp.  4~7- 


OBJECTIVE  AND   SUBJECTIVE  241 

is  at  the  same  time  the  author  and  the  subject  of  the 
division  is  regarded  under  different  aspects.  His  situa- 
tion as  a  member  of  a  family  may  have  a  great  im- 
portance. Finally,  the  subdivision,  here  under  considera- 
tion, is  not  exactly  an  economic  distribution;  it  is  a 
distribution  which  has  at  its  base  the  moral  unity,  the 
internal  solidarity,  of  each  family. 

We  may,  once  for  all,  observe  that  what  Zitovich  says 
in  speaking  of  the  family  applies  equally  to  the  state. 
The  relations  of  the  state  with  the  citizens  give  rise,  also, 
to  distribution.  The  state  allots  privileges,  distributes 
gratifications,  makes  loans,  pays  debts.  In  all  these 
operations  the  individual  appears  as  the  author  and  the 
subject  of  distribution,  and  it  is  of  importance  for  the 
law  to  consider  him  under  this  relation  and  observe 
what  his  situation  is,  not  now  as  a  member  of  a  family, 
but  as  a  member  of  the  state.  The  distinctions  between 
classes  have  had  great  importance  in  this  point  of  view. 

All  the  wealth  which  the  state  accumulates  by  means 
of  taxes  which  are  imposed  upon  the  nation,  and  also 
by  means  of  revenues  derived  from  domainal  goods,— 
all  this  wealth  is  not  distributed  according  to  the  laws 
of  economic  distribution,  but  rather  according  to  politi- 
cal reasons  In  a  general  way  we  can  say  that  the 
organization  of  the  state  has  as  extensive  an  influence 
over  the  distribution  of  wealth  as  has  that  of  the 
family. 

Reasoning  in  this  fashion,  Zitovich  ought  to  come  to 
the  conclusion  that  all  juridical  relations,  being  rela- 
tions of  distribution,  should  be  placed  in  the  private 
law.  Public  law,  for  him,  also,  results  necessarily  in  the 
deplacement  of  wealth  in  the  economic  order,  and  then 
can  we  assert  that  there  is  in  the  civil  law  nothing  but 
relations  of  distribution?  Evidently  not.  Family  rights, 
for  example,  comprehend  quite  a  different  thing  and 
contain  dispositions  which  do  not  all  affect  the  patri- 


242  THEORY  OF  LAW 

mony.  On  the  contrary,  in  the  public  law  certain 
branches,  like  financial  legislation,  deal  exclusively  with 
relations  of  economic  distribution. 

We  see,  then,  that  all  the  attempts  to  establish  dis- 
tinctions between  private  and  public  law  have  remained 
unfruitful.  The  distinctions  among  interests  which  con- 
stitute the  matter  of  juridical  relations  do  not  suffice  as 
a  basis  for  the  classification  of  those  juridical  relations 

Since  juridical  norms  determine,  not  the  interests 
themselves,  but  only  the  different  limits  which  exist  be- 
tween them,  the  forms  which  they  affect,  let  us  seek, 
then,  to  distinguish  the  juridical  relations,  not  in  accor- 
dance with  those  interests  which  are  the  same  in  all  the 
phenomena  of  social  life,  but  in  accordance  with  the 
manner  in  which  those  interests  are  delimited,  accord- 
ing to  their  form. 

This  impossibility,  which  we  have  just  recognized,  of 
finding  in  the  matter  of  juridical  relations  the  basis  for 
a  distinction  between  public  and  private  law  is  further 
confirmed  by  the  examples  furnished  by  the  history  of 
law,  by  the  different  forms  in  which  relations  absolutely 
identical,  so  far  as  their  matter  is  concerned,  have  been 
clothed. 

In  the  middle  ages,  for  example,  certain  powers,  cer- 
tain prerogatives  of  public  power,  were  only  accessory 
rights  attached  to  the  possession  of  the  soil. 


OBJECTIVE  AND  SUBJECTIVE  243 


Section  33.    Formal  Classifications 

KANT.  Metaphysische  Anfangsgrunde  der  Rechtslehre,  1797.  s. 
161  ff. 

PUCHTA.  Vorlesungen  liber  das  heutige  rom.  Recht.  I.  s. 
75  ff. 

JELLINEK.  System  der  offentlichen  subjektiven  Rechten,  1892. 
ss.  40-65. 

THON.     Rechtsnorm  und  subjektives  Recht.     ss.  108-146. 

MOUROMTZEV.  Definition  and  fundamental  divisions  of  law,  pp. 
185-217. 

The  insufficiency  of  classifications  founded  upon  the 
matter  and  content  of  the  juridical  relations  has  led 
savants  to  seek  a  classification  of  public  rights  and  pri- 
vate rights  from  external  signs,  from  the  forms  of  jurid- 
ical relations.  Several  formal  classifications  have  been 
tried.  We  may  group  them  under  two  categories.  Some 
think  to  find  the  basis  of  a  distinction  between  public 
rights  and  private  rights  in  the  different  situations 
in  which  the  subjects  of  juridical  relations  find  them- 
selves; the  objects,  for  example,  which  rights  give  to 
a  man  are  given  him  either  as  a  member  of  society  or 
as  a  human  individual.  Others  recognize  a  distinction  in 
the  character  of  the  protections  which  the  law  gives 
to  defend  injured  individuals  and  look  to  see  if  these 
protections  are  granted  on  the  initiative  of  the 
individual  injured  or  on  the  intervention  of  public 
authority. 

The  first  of  these  two  conceptions  owes  its  origin 
to  the  influence  asserted  by  the  school  of  natural  law, 
the  school  of  the  state  of  nature,  which  is  conceived  as 
having  preceded  the  formation  of  society. 

Law  at  its  origin  by  the  formation  of  society  is  exclu- 
sively private  law.  This  law  continues  to  exist  when 
the  society  is  formed,  but  it  is  then  surrounded  and 


244  THEORY   OF   LAW 

completed  by  institutions  which  have  for  their  end  the 
organization  of  the  state  and  of  its  organs  and  of  its 
functions.  This  additional  law  "s  public  law.  The  rela- 
tions it  has  with  private  law  are  those  of  support  and 
protection. 

All  public  law  has  been  created  to  serve  as  a  support 
for  the  sanction  of  private  law.  This  is  an  opinion 
adopted  by  Kant,  amongst  others,  to  serve  as  a  distinc- 
tion between  public  and  private  rights. 

This  classification,  due  to  the  theory  of  the  natural 
state,  has  had  meanwhile  the  same  fate  as  the  theory 
from  which  it  came.  This  theory  lost  its  favor  some 
time  ago,  and  nobody  today  defends  it.  The  classi- 
fication, however,  to  which  it  gave  birth,  is  still  ad- 
mitted by  a  good  many  authors  and  has  even  been 
somewhat  expanded. 

It  is  to  the  historical  school,  which  was  one  of  reac- 
tion against  the  school  of  natural  law,  that  we  owe 
the  author  who  has  best  defended  this  classification. 
Puchta  in  his  works  appears  as  its  determined  par- 
tisan. Puchta  distinguishes  rights  according  to  whether 
the  man  holds  them  as  an  individual  or  as  a  member 
of  an  organized  society.  In  the  first  division  are  the 
rights  of  property  and  rights  of  family;  in  the  sec- 
ond, public  and  ecclesiastical  rights.  The  rights  of 
property  and  rights  of  family  constitute  private  rights, 
hence  his  division  of  rights  into  three  great  classes, 
private  rights,  public  rights,  and  ecclesiastical  rights. 

We  observe  at  once  an  incoherence  in  this  classifica- 
tion. In  fact,  if  it  has  for  its  basis  the  distinction  of 
rights  which  belong  to  a  man  according  as  he  appears 
as  an  individual  or  as  a  member  of  a  society,  it  is  neces- 
sary to  oppose  the  right  of  property  to  all  other  rights. 
But  Puchta  combines  rights  of  property  with  rights  of 
family. 

Other  writers  have  brought  modifications  of  Puchta's 


OBJECTIVE  AND  SUBJECTIVE  245 

theory  and  have  corrected  his  definition  to  this  extent, 
that  they  have  divided  all  law  into  two  categories  only, 
public  and  private.  Public  rights,  they  have  said,  in- 
clude only  rights  which  necessarily  presuppose  the  exist- 
ence of  an  organized  society  among  men  and  which  can- 
not exist  without  such  a  society.  Private  rights  are  those 
which  suppose  only  a  simple  coherence  of  men.  Rights 
of  family  in  this  new  theory  will  be  considered  as  private 
rights,  since  they  can  exist  outside  of  society  and  inde- 
pendently of  the  state. 

While  this  theory  seems  more  logical  and  more  com- 
plete, it  presents,  nevertheless,  a  grave  defect.  It  has  for 
a  basis  this  idea,  that  men  can  live  without  being  organ- 
ized in  society  and  that  one  can  admit  among  these  men, 
living  outside  of  all  society, 'the  existence  of  rights.  This 
is  an  altogether  false  conception.  We  are  more  and  more 
convinced  that  right  exists  only  in  society;  no  society,  no 
right.  There  are,  it  is  true,  a  good  many  degrees  in  the 
organization  of  a  society,  but  even  a  crowd  assembled 
by  chance  is  not  without  some  bonds  of  connection, 
without  some  relations  between  the  individuals  who 
make  it  up. 

Let  us  look  at  some  of  the  developments  of  this  last 
theory.  The  relations  of  private  right,  marriage,  ex- 
change, gifts,  say  the  partisans  of  this  doctrine,  are  pos- 
sible even  where  there  is  no  state  and  no  organized  so- 
ciety. They  can  exist  even  amongst  a  band  of  brigands, 
amongst  individuals  gathered  together  by  accident  in  a 
desert. 

But  the  relations  of  a  public  character,  for  example 
election  to  parliament,  are  possible  only  in  an  organized 
state.  It  is  easy,  however,  to  use  these  very  examples  to 
refute  this  theory. 

Without  doubt  we  can  elect  a  member  of  parliament 
only  where  there  is  a  parliament.  That  is  very  true,  but 
we  can  also  form  certain  agreements,  perform  certain  acts 


246  THEORY  OF  LAW 

of  exchange  only  where  there  are  notaries  and  by  conse- 
quence, an  organized  society. 

Moreover,  even  a  crowd  assembled  by  chance  can  hold 
discussions  over  their  common  affairs  and  give  directions 
in  the  general  interest.  Let  us  suppose  a  ship  which  suf- 
fers wreck  and  over  which  the  captain  does  not  exercise, 
as  he  might  do,  his  right  of  commanding  the  passengers; 
these  latter  may  discuss  together  their  present  situation 
and  take  necessary  measures  for  the  common  safety. 
Among  them  the  more  energetic  will  speedily  become 
dominant.  Doubtless  it  might  be  said  that  there  is  here 
nothing  organized,  that  there  can  be  no  question  of  a 
vote,  of  a  right  to  vote,  but  nevertheless  the  vote  exists 
in  the  throng  under  such  circumstances.  The  sexual 
union  itself  will  be  only  a  fact,  nothing  else;  the  exchange 
or  the  gift  also  will  be  only  facts  and  not  the  result  of 
the  exercise  of  a  right.  The  thing  may  be  transmitted, 
but  no  right,  for  there  is  none. 

Another  defect  resulting  from  a  classification  so  ex- 
tended is  that  it  results  logically  in  introducing  into  the 
public  law  the  relations  between  members  of  any  asso- 
ciation, any  society,  that  of  the  stockholders  in  an  incor- 
porated company,  for  example,  or  even  the  relations  of 
the  family  group. 

The  partisans  of  the  system  go  so  far  without  recoiling 
from  the  overthrow  which  they  are  giving  to  the  current 
conception  which  rules  as  to  the  matter. 

Bahr,  for  example  (Rechtstaat,  1865) ,  would  divide  all 
law  into  private  law  (Privatrechi)  and  the  law  of  societies 
(Genossenschaftsrecht) .  The  first  includes  the  relations  of 
men  considered  as  members  of  an  organism,  state,  so- 
ciety, church.  Public  law  thus  considered  is  only  a  sub- 
division of  the  law  of  associations. 

Gierke  holds  equally  to  this  same  opinion;  but  such  a 
classification  does  not  answer  at  all  to  the  historic  group- 
ing of  the  relations  men  hold  to  each  other. 


OBJECTIVE  AND  SUBJECTIVE  247 

Jellinek,  under  a  form  a  little  different,  accepts  this 
distinction  of  rights  into  public  and  private  rights.  He 
distinguishes  rights  into  two  categories, — there  are  bear- 
ers of  rights  who  can  exercise  choice  and  others  who  can 
only  hold  (durfen  und  konnen).  The  law,  said  he,  can 
only  recognize  as  permitted  those  relations  which  existed 
before  it,  and  independently  of  it,  to  which  it  brings  no 
new  element,  unless  it  be  that  individuals  who  previously 
had  power  to  act  can  now  act  legally  (durfen).  The  con- 
sequences of  the  recognition  of  this  power  to  act  appear 
very  clearly  when  it  is  attempted  to  study  the  effects  of 
legal  prohibitions.  Every  prohibition  can  be  reduced 
to  this  formula, — you  may  not,  you  cannot  legally  (du 
darfst  nicht).  In  every  case  the  prohibition  does  not 
render  an  act  impossible  to  do,  it  merely  declares 
the  doing  of  it  illegal.  The  prohibition  can  always 
be  violated.  But  the  action  of  the  law  is  not  limited 
merely  to  permissions  and  prohibitions.  The  law 
can  add  to  the  individual's  capacity  a  new  element.  It 
can  give  to  acts  and  contracts  a  juridical  force  which 
brings  with  it  some  new  consequences  quite  different 
from  those  attached  by  nature  to  the  same  act  or  con- 
tract. It  has,  then,  that  which  is  called  juridical  force 
(rechtliches  Konnen) . 

These  two  elements,  power  and  force,  are  so  closely 
connected  that  the  first  never  exists  without  the  second. 
What  I  may  do  legally  is  only  the  sum  of  my  power  over 
actual  facts,  recognized  and  assented  to  by  the  law; 
but  juridical  force  may  exist  meanwhile  without  such 
"power";  in  the  case,  for  example,  where  the  law  does 
not  merely  protect  the  natural  capacity  of  the  person, 
but  gives  to  him  a  new  capacity. 

Jellinek's  distinction  between  public  and  private  law 
has  its  foundation  exactly  in  this  correlation  of  juridical 
power  and  juridical  force.  In  private  law  the  first 
element,  the  power,  exists  always;  in  public  law  one 


248  THEORY  OF  LAW 

requires  always  the  presence  of  the  second,  the  state's 
force,  and  public  rights  are  all  based  on  a  force  resulting 
from  the  law.  They  are  no  part  of  the  natural  liberty 
regulated  by  law,  but  constitute  an  enlargement  of  this 
natural  liberty. 

This  distinction  is  purely  artificial,  and  if  examined 
closely  loses  all  its  value.  Durfen  und  konnen,  pouvoir  et 
puissance,  "power  and  force,"  are  not  essential  elements 
of  the  matter  of  subjective  right.  Such  a  distinction  be- 
tween these  two  elements  depends  not  upon  the  matter 
of  the  right,  but  upon  consequences  brought  on  by  the 
violation  of  a  right.  If  the  violation  of  a  legal  rule  re- 
sults only  in  a  liability  on  the  part  of  him  who  violates 
the  law  (lex  minus  quam  perfectd),  it  may  result  that  one 
cannot  violate  this  law,  but  he  finds  that  he  has  had  the 
force  to  do  so.  If  such  a  violation  brings  about  the  legal 
nullity  of  the  act  forbidden  by  the  law  (lex  perfectd),  the 
power  to  perform  such  act  does  not  exist.  If,  finally,  the 
violation  of  the  rule  brings  at  the  same  time  a  liability 
upon  the  doer  of  the  act  and  the  legal  nullity  of  the  act 
(lex  plus  quam  perfectd}  there  is  neither  power  nor  force 
to  violate  such  a  rule. 

On  the  other  side,  it  is  necessary  to  observe  that  the 
element  of  "Durfen,"  of  permission,  is  not  at  all  a 
stranger  to  public  law. 

The  individual  who  does  not  possess  the  needed  legal 
capacity  not  only  has  not  "Konnen"  ability,  to  accept  a 
given  function,  but  neither  has  he  "Durfen"  permission, 
since  the  usurpation  of  this  function  is  a  punishable 
act. 

A  classification  having  for  a  base  the  distinction  of 
consequences  which  the  violation  of  the  law  involves,  has 
been  proposed  by  Thon.  If  the  violation  of  law  brings 
to  him  who  has  suffered  by  its  violation  the  right  of 
an  indemnity,  the  right  in  this  case  is  a  private  one; 
if,  on  the  contrary,  this  violation  brings  about  the 


OBJECTIVE  AND  SUBJECTIVE  249 

intervention   of   public   authority,    then   it   is   a   public 
right. 

More  briefly,  private  rights  are  those  which  are  spe- 
cially protected  by  the  initiative  of  the  person  who 
has  suffered  damage;  public  rights  are  those  pro- 
tected by  society,  the  state,  independently  of  the 
intervention  of  the  injured  individual.  This  classifi- 
cation of  Thon  has  found  a  good  many  partisans 
amongst  Russian  jurists,  among  others  Mouromtzev, 
Gambaroff  and  Duvernoi.  It  is,  however,  not  very 
accurate. 

First,  the  distinction  between  public  and  private  rights 
would  appear  only  when  they  are  violated,  but  even 
when  they  are  not  violated,  we  distinguish  quite 
clearly  between  public  rights  and  private  ones.  Thus  all 
the  world,  for  example,  knows  that  one  can  transfer  fam- 
ily rights,  while  public  rights  are  not  subject  to  aliena- 
tion. 

Then,  it  is  not  precise  to  claim  that  private  rights  are 
the  only  ones  protected  by  private  initiative.  There  are 
also  crimes  or  offenses  pursued  only  upon  the  com- 
plaint of  the  one  who  has  been  the  victim.  When  there 
is  a  system  of  administrative  justice  the  right  of  pursuit 
is  left  to  private  persons  the  more  frequently  even  if  the 
public  rights  have  suffered  some  injury  as  to  their  pro- 
tection by  the  administration. 

Finally,  and  this  is  the  most  important  point,  the  right 
of  pursuit  given  to  individuals  who  have  suffered  injury 
and  the  action  of  authority  are  not  two  pursuits  which 
exclude  each  other.  They  can  very  readily  take  place 
simultaneous  y  as  the  consequence  of  a  single  act  violat- 
ing some  single  right.  Let  us  take  as  examples  the  case 
of  robbery  and  assassination.  There  is  a  criminal  pro- 
ceeding inst  tuted,  but  there  is  also  a  civil  pursuit 
on  the  part  of  the  victims  or  the  successors.  These 
two  prosecutions  to  be  sure,  are  quite  distinct,  but 


250  THEORY   OF  LAW 

they  cannot  serve  to  establish  a  criterion,  a  mark 
of  distinction  between  public  and  private  rights. 
Otherwise,  we  would  be  compelled  to  admit  that  the 
same  right  can  be  at  the  same  time  a  public  and  a  pri- 
vate one. 


OBJECTIVE  AND  SUBJECTIVE  251 


Section  34.     The  Distinction  Between  Public  Rights  and 
Private  Rights 

All  the  theories  which  we  have  just  examined  have  fur- 
nished no  satisfactory  explanation  of  the  distinction  be- 
tween public  and  private  law.  They  give,  however,  some 
characteristic  indications  of  this  distinction.  They  have 
shown  us  that  it  is  necessary  to  avoid  seeking  the  basis 
of  this  distinction  in  the  different  interests  in  view  of 
which  public  and  private  rights  are  created.  The  basis 
of  the  whole  distinction  should  be  sought  in  the  form 
with  which  juridical  relations  clothe  themselves.  Such  a 
distinction  ought  by  no  means  to  have  as  its  principal 
foundation  merely  the  subject  of  the  right  or  the  conse- 
quences which  the  violation  of  the  right  brings.  This  dis- 
tinction ought  to  be  more  general  and  ought  to  be  appli- 
cable even  when  there  has  been  no  violation  of  the 
right. 

All  rights  being  appendant  to  human  beings  regarded 
as  members  of  society,  it  is  necessary  to  seek  the  expla- 
nation of  the  distinction  between  public  and  private  right 
in  the  diversity  which  the  legal  forms  of  all  the  relations 
established  among  men  present. 

The  right,  as  we  have  seen,  is  in  general  the  power  to 
make  use  of  something.  This  faculty  can  be  guaranteed 
to  an  individual  under  a  double  form.  The  simplest 
form  is  that  of  dividing  the  object  into  several  parts, 
and  each  of  these  parts  being  assigned  to  an  owner. 
Thus,  we  establish  the  difference  between  tuum  and 
meum.  The  whole  conception  of  private  property  is 
founded  on  such  a  division.  It  is  again  this  same  prin- 
ciple of  division  which  serves  as  a  basis  of  the  institution 
of  the  family,  excluding  the  intervention  of  outside  per- 
sons, the  law  having  assigned  the  family  a  proper  sphere 
of  action. 


252  THEORY  OF  LAW 

This  distribution  is  often  taken  for  the  fundamental 
idea  in  law  because  all  questions  of  law  are  connected 
with  property.  Some  consider  the  idea  of  communism  as 
the  negation  of  all  rights  because  it  excludes  this  division, 
together  with  the  idea  of  property. 

However,  the  simplest  form  of  distribution  is  not  the 
only  one,  nor  the  oldest,  nor  the  most  perfect  for  assur- 
ing the  use  of  an  object.  By  the  side  of  this  form  which 
depends  entirely  upon  the  distinction  between  tuum  and 
meum,  there  is  another  form,  that  of  the  adaptation  of 
the  object  to  the  joint  realization  of  certain  inter- 
ests. 

The  insufficiency  of  the  first  form  of  which  we  have 
just  spoken,  that  of  division,  appears  readily.  There  are 
objects  which  it  is  impossible  to  divide;  for  example,  the 
different  parts  of  a  navigable  river,  of  a  public  highway, 
cannot  be  apportioned.  If  one  should  proceed  with  the  at- 
tempt, he  would  destroy  at  a  stroke  the  public  utility  of 
these  objects.  Other  objects,  although  divisible,  require 
an  adaptation,  some  sort  of  a  change,  for  the  realization 
of  the  interests  concerned.  With  money,  for  example,  it 
is  not  sufficient  merely  to  divide  up  the  gold  and  silver 
among  individuals;  it  is  necessary  to  give  it  a  form,  to 
coin  it,  to  preserve  the  gold  and  silver  from  counterfeit- 
ing and  deceit. 

Consequently  alongside  the  distinction  of  tuum  and 
meum  there  must  exist  another  form  of  delimitation  of  in- 
terests, another  mode  of  distribution  and  division.  This 
second  form  we  will  call  "adaptation,"  and  we  will  dis- 
tinguish it  thus  from  the  first,  from  "distribution."  The 
portions  of  land,  highways,  for  example,  left  for  the  use 
of  all,  the  money  whose  coinage  guarantees  the  value  of 
the  metal  employed,  are  "adaptations."  Each  of  these 
forms,  taken  alone,  is  insufficient.  Even  if  private  prop- 
erty is  not  recognized,  private  possession  has  need  to  be 
protected.  We  can  imagine  the  state  of  things  in  which 


OBJECTIVE  AND   SUBJECTIVE  253 

there  would  be  no  such  protection.  Suppose,  for  exam- 
ple, the  soil,  the  other  objects  which  we  use  here,  to  be 
for  the  use  of  the  whole  world  and  without  individual 
appropriation.  It  would  be  necessary,  none  the 
less,  to  establish  some  security  for  that  portion  of 
the  soil,  for  that  object,  which  we  are  employing  at 
the  very  moment  when  we  are  serving  ourselves 
with  it. 

If  there  were  no  right  of  property  to  be  protected, 
there  would  be  at  least  a  temporary  possession  which 
would  require  to  be  guaranteed. 

This  right  to  the  possession  of  an  object,  the  same  as 
ownership  of  an  object,  supposes  a  preliminary  distribu- 
tion of  objects,  placing  them  at  the  disposition  of  indi- 
viduals. This  is  the  division,  as  we  have  seen,  between 
tuum  and  meum;  meum  is  not  only  what  I  have  acquired 
by  lawful  means,  but  what  I  find  really  in  my  own  pos- 
session. 

So  these  two  forms  of  the  guarantee  of  legal  possibil- 
ity are  equally  necessary.  They  cannot  be  replaced,  the 
one  by  the  other.  Always  and  everywhere  their  coexist- 
ence is  indispensable.  So,  and  very  advantageously,  they 
can  be  regarded  as  the  basis  of  all  classification  of 
legal  phenomena.  But  the  grouping  which  has  its  prin- 
cipal foundation  in  the  distribution  of  objects  among 
individuals,  or  in  their  adaptation  to  common  needs,  does 
it  correspond  to  public  rights  on  the  one  side,  and  to 
private  rights  on  the  other,  as  their  historic  development 
has  exhibited  them?  I  think  the  answer  should  be  in  the 
affirmative. 

We  can  explain  all  the  differences  between  public  rights 
and  private  rights  by  the  distinction  between  distribu- 
tion and  adaptation  as  above  explained. 

The  most  remarkable  differences  existing  between  pub- 
lic and  private  rights  are  those  which  connect  them- 
selves with  the  acquisition  of  rights  and  their  loss, 


254  THEORY  OP  LAW 

with  their  content  and  with  the  relations  between  rights 
and  obligations. 

Private  rights  are  acquired  as  a  result  of  special  cir- 
cumstances having  a  distinctly  individual  character  and 
connecting  directly  or  indirectly  with  some  particular  in- 
dividual. And  this  individual  character  of  the  acquisi- 
tion is  strengthened  constantly  by  the  special  bond  which 
arises  between  the  thing  assigned  and  the  person  receiv- 
ing it.  Also,  in  private  right  we  distinguish,  always 
vigorously,  between  capacity  and  possession,  between 
possibility  of  acquiring  a  right  and  actually  getting 
it.  All  those  who  have  capacity  may  in  general  pos- 
sess a  thing,  but  it  is  only  those  who  have  received 
the  right  of  possessing  a  thing  who  have  really  a  control 
over  it. 

When  an  object  adapted  only  to  common  usage  is 
under  consideration,  it  cannot  be  in  the  same  way.  An 
act  of  acquisition,  of  individual  appropriation,  even  tem- 
porary, cannot  intervene,  since  it  is  a  group  of  persons 
whose  interests  are  served  by  the  object.  It  suffices  to 
be  one  of  the  group  in  order  to  have  over  this  thing  a 
right  of  use.  Here  the  capacity  and  right  come  to- 
gether. This  is  what  happens  in  the  exercise  of  all  pub- 
lic rights.  All  those  who  satisfy  the  required  conditions 
for  electoral  capacity  have  the  right  to  vote.  For  the 
exercise  of  this  right  there  is  no  need  of  any  special  indi- 
vidual qualification. 

It  is  quite  otherwise  with  the  private  right.  If,  for  ex- 
ample, I  am  capable  of  participating  in  the  issuance  of  a 
bill  of  exchange,  this  does  not  by  any  means  require  that 
I  shall  be  the  owner  of  the  rights  and  obligations  result- 
ing from  a  bill  of  exchange. 

The  loss  of  a  public  right  results  from  a  loss  of  capa- 
city, independently  of  the  will  of  the  bearer  of  the  right. 
Private  rights,  on  the  contrary,  can  be  lost  without  any 
change  whatever  in  the  juridical  capacity  of  the  person 


OBJECTIVE  AND   SUBJECTIVE  255 

and  by  the  mere  fact  of  his  will.  He  can  renounce  a 
right,  can  alienate  it,  can  grant  it  to  another  to  be  exer- 
cised in  his  place.  We  see  here,  further,  an  application 
of  our  distinction  between  the  distribution  and  the  adap- 
tation of  the  object. 

The  right  possessed  by  the  member  of  any  society  to 
the  collective  use  of  an  object  is  lost  when  this  member 
ceases  to  be  a  part  of  the  society.  He  cannot  grant  the 
usage  of  his  right  to  another  individual  who  does  not  be- 
long to  this  society.  Alienation  is  not  applicable  to  pub- 
lic rights.  It  could  not  have  as  a  result  any  transfer  of 
the  right,  the  other  members  of  the  group  having  already 
a  right  to  the  use  of  the  thing. 

As  to  the  object  over  which  a  right  extends,  if  as  a  re- 
sult of  distribution  it  is  assigned  to  a  particular  person, 
its  adaptation,  if  any,  is  made  by  the  owner  and  accord- 
ing to  his  will.  He  makes  the  object  conform  to  the  pur- 
pose which  he  proposes  and  in  the  way  he  wishes.  A 
sovereign  power  of  disposition  belongs  to  him,  for  his 
own  personal  interest.  Such  is  the  matter  of  all  private 
rights.  They  are  absolute  rights,  including  at  once  use 
and  disposition. 

In  the  public  right,  on  the  contrary,  the  power  of  dis- 
position does  not  exist.  This  power  takes  the  form  of  an 
obligation.  The  administration  of  the  railroads,  for  ex- 
ample, has  the  right  to  control  their  iron  roads,  but  this 
is  at  the  same  time  only  an  obligation.  The  administra- 
tion cannot  use  this  power  for  alienation.  It  will  make 
use  of  the  iron  roads,  not  in  its  own  interest,  but  in  the 
interest  of  all. 

It  is  the  same  with  common  roads  and  highways.  It  is 
impossible  to  give  to  each  of  those  who  use  them  the 
right  of  disposition,  and  those  who  have  them  in  charge 
have  equally  no  right  of  disposing  of  them  except  in  the 
general  interest. 

Prom  this  distinction  between  distribut:on  and  adap- 


256  THEORY   OF  LAW 

tation  result,  also,  the  differences  which  exist  in  the  cor- 
relation between  right  and  obligation,  differences  which 
we  recognize  in  the  public  and  private  right.  When  the 
object  belongs  to  an  individual,  the  personality  of  the 
bearer  of  the  right  is  always  exactly  determined.  On  the 
contrary,  when  the  object  is  adapted  to  a  collective 
usage,  it  is  society  considered  as  a  whole  which  possesses 
it.  The  determination  is  here  general,  and  persons  who 
form  the  society  are  not  specific  individuals.  On  the 
other  hand,  the  subject  of  the  obligation  is  exactly  deter- 
mined. 

All  the  peculiarities  of  public  and  private  law,  we  see 
by  the  foregoing,  are  explained,  then,  in  a  satisfactory 
manner  by  the  distinctions  between  distribution  and 
adaptation. 

We  can  by  the  same  criterion  furnish  the  explanation 
for  the  existence  of  private  rights  in  the  state  for  its  own 
profit. 

If  the  power  given  by  the  state  is  attributed  to  it  with 
a  view  to  the  adaptation  of  a  thing  to  the  general  use,  we 
find  ourselves  in  the  presence  of  a  public  right.  Such  is 
the  right  of  the  state  over  its  means  of  communication. 
If,  on  the  contrary,  the  object  which  the  state  possesses 
has  been  given  that  it  may  serve  itself  with  it  in  order 
to  get  therefrom  the  necessary  means  for  the  adaptation 
of  other  objects,  this  is  a  private  right.  Such  is  the 
right  which  the  state  possesses  over  its  own  goods.  The 
revenues  from  such  property  serve  for  the  maintenance 
of  this  or  that  grand  division  of  administration. 

It  remains  still  to  explain  the  numerous  classifications 
which  we  have  examined  above.  We  shall  do  so  by  fur- 
ther use  of  the  distinctions  established  between  "distri- 
bution" and  "adaptation."  The  preceding  classifications 
derive  their  foundation  from  a  secondary  point,  from  one 
of  the  accessory  consequences  of  the  leading  idea  which 
we  have  just  set  forth. 


OBJECTIVE  AND   SUBJECTIVE  257 

Let  us  observe  first  of  all  that  if  we  divide  an  object 
amongst  several  individuals,  the  will  of  each  of  these  in- 
dividuals plays  a  preponderant  role  in  the  application  of 
the  thing  to  some  given  use.  How  or  in  what  fashion 
shall  each  one  employ  the  object  ?  This  will  depend  upon 
the  bearer  of  the  right.  The  answer  is  altogether  differ- 
ent if  the  object  is  applied  to  the  collective  use  of  all. 
In  this  case  the  manner  in  which  each  one  shall  use  the 
thing,  and  the  adaptation  to  be  made  of  it  for  the  com- 
mon interest  of  all,  is  according  to  a  rule  fixed  by  the  leg- 
islature. Here  the  liberty  of  disposing  of  the  object  no 
longer  exists.  Each  person,  who  has  a  right  of  use  over 
the  object,  finds  himself  bound  by  exact  limits,  can  mod- 
ify neither  the  object  nor  its  value,  because  an  identical 
right  exists  for  the  advantage  of  every  other  member  of 
the  society. 

For  this  reason,  the  first  form  of  these  two  actions  of 
law,  the  distribution,  results  in  consequences  presenting  a 
more  individual  character;  the  second,  on  the  other  hand, 
in  consequences  of  a  more  social  character. 

The  predominance  of  patrimonial  rights  among  private 
rights,  the  facility  with  which  these  rights  are  trans- 
formed into  a  value  which  is  the  price  of  the  object,  can 
also  very  easily  be  explained  upon  our  theory.  When  we 
proceed  to  a  distribution  of  certain  objects  among  indi- 
viduals it  happens  frequently  that  the  object  assigned  to 
an  individual  does  not  correspond  to  any  need  he  has. 
Exchange  is  the  only  means  to  be  employed  in  such  a 
case. 

The  facility  with  which  a  thing  can  be  exchanged  or 
alienated  has,  then,  a  great  importance.  It  is  a  quality 
of  things  of  a  general  order  which  has  even  more  value 
than  the  other.  This  capacity  which  things  possess  of 
being  exchanged  makes  them  applicable  to  all  needs 
without  exception,  and,  if  the  capacity  of  exchange  is  ex- 
pressed always  by  price,  it  is  evident  that  all  efforts  tend 


258  THEORY   OF  LAW 

everywhere  to  transform  the  right  over  an  object  into  a 
right  over  its  price. 

In  the  individual  distribution  of  objects,  private  law 
leaves  to  each  the  necessity  of  determining  what  means 
he  shall  employ  for  the  satisfaction  of  his  own  wants  and 
for  the  production  of  other  values.  Public  law,  on  the 
other  hand,  adapts  the  object  to  a  given  public  use  and 
regulates  at  the  same  time  the  use  of  the  object  and  the 
means  of  its  production.  Private  law  in  economic  mat- 
ters does  not  attempt  to  regulate  either  the  employment 
or  the  production  of  wealth,  but  merely  its  distribution. 
It  is  this  which  permits  Zitovich  to  define  civil  law  as  a 
law  of  distribution. 

The  assigning  of  an  object  does  not  take  place  without 
an  individualization  of  the  thing  as  well  as  of  him  who 
has  a  right  over  it.  The  application  of  an  object  to  a 
common  use  combines  several  individuals  together  and 
brings  about  their  association  by  this  community  of  use. 
Hence  the  notion  that  private  rights  belong  to  man,  con- 
sidered individually,  and  public  rights  to  man,  consid- 
ered as  a  member  of  an  organized  society. 

The  right  to  dispose  of  the  thing  of  which  one  is  the 
owner  makes  him  the  one  upon  whom  depends  the  pro- 
tection accorded  to  this  object.  If  the  object  is  applied 
to  a  common  usage,  on  the  contrary,  this  protection  will 
depend  no  longer  upon  the  will  of  any  individual. 

In  this  secondary  consequence  of  the  distinction  be- 
tween rights  over  things  accorded  to  a  collectivity  of  in- 
dividua's  and  those  granted  to  an  individual,  Thon  and 
his  disciples  have  sought  to  find  the  sole  basis  of  the  dis- 
tinction between  public  and  private  law. 


BOOK  III 

SOCIAL  CONDITIONS  FOR  THE  DEVELOPMENT 
OF  LAW 

CHAPTER  I 
SOCIETY 

SPENCER.     "Principles  of  Sociology,"  1876-1877. 

LILIENFELD.  "Gedanken  uber  die  Social wissenschaft  der  Zu- 
kunft,"  1879. 

SCHAEFFLE.  "Bau  und  Leben  des  socialen  Korpers,"  2d  edition, 
1881. 

FOUILLEE.     "La  science  sociale  ccntemporaine,"  1880. 

KAREIEV.  "Fundamental  Questions  in  the  History  of  Philos- 
ophy," Vol.  II,  1883. 

GUMPLOWICZ.     "Grundriss  der  Sociologie,"  1884. 

Section  35.     The  Mechanical  Theory 

So  far  we  have  considered  law  wholly  aside  from  the 
medium  of  its  application.  This  medium  is  society.  It 
is  only  in  the  bosom  of  society  that  law  is  formed  or  acts, 
because  its  task  is  precisely  to  fix  and  to  limit  human 
interests  in  relations  to  each  other.  Wherever  there  is 
no  society,  wherever  man  shows  himself  merely  as  an  iso- 
lated individual  there  is  no  place  for  law. 

Every  phenomenon  depends  upon  the  medium  in  which 
it  is  produced.  Law  does  not  escape  this  general  rule. 
It  depends  upon  the  social  medium  in  which  it  is 
applied. 

Let  us  see  what  is  the  nature  of  society's  influence  over 
law  and  over  the  state,  which  is  the  form  of  social  life 
most  closely  connected  with  law.  The  explanation  of 
society  has  been  often  attempted,  and  many  theories  still 

259 


260  THEORY  OP  LAW 

divide  the  field.  Most  of  these  theories  can  be  reduced 
to  two  groups  if  one  classifies  them  according  to  the  con- 
ception they  hold  of  nature  and  of  society. 

For  some,  society  is  a  wholly  artificial  creation,  man's 
work,  produced  by  his  will;  this  is  the  mechanical  con- 
ception. For  others,  society  is  a  natural  fact,  arising  and 
developing  outside  of  human  will,  in  obedience  to  inex- 
orable laws,  like  all  other  natural  organisms;  this  is  the 
organic  conception. 

The  first  conception  was  especially  that  of  the  XVII 
and  XVIII  centuries.  The  idea  that  society  was  a  crea- 
tion, the  product  of  human  activity,  was  at  that  time 
generally  admitted.  It  was  the  consequence  of  other 
philosophical  and  psychological  ideas. 

Philosophy,  at  that  time,  indeed,  did  not  consider  the 
universe  as  a  living  whole.  The  universe  was  divided 
into  two  quite  distinct  parts,  spirit  and  matter,  the  two 
combined  by  a  mechanical  juxtaposition.  According  to 
this  philosophic  conception  we  must  reduce  everything  to 
a  mechanism,  to  forces.  Beings  were,  in  the  eyes  of  the 
philosophers  of  that  time,  only  organisms  acting  auto- 
matically. 

Social  phenomena  naturally  could  not,  under  such 
theories,  be  explained  otherwise  than  by  a  mechanical 
conception. 

Psychological  theories,  then,  of  course,  resulted  in  the 
same  conclusions.  Both  the  theories  then  held,  that  of 
innate  ideas  and  that  of  sensationalism,  despite  the  op- 
position between  them,  agreed  in  this,  the  denial  of  the 
existence  of  any  transmission  of  psychological  develop- 
ment from  one  generation  to  another. 

Some  admitted  that  man  at  all  epochs  possessed  from 
his  birth  an  intellectual  outfit,  a  world  of  innate  ideas, 
but  this  outfit  remained  always  the  same;  this  world  was 
not  augmented  among  his  descendants.  Others  thought 
that  man  at  birth  knew  nothing,  was  an  absolute  void, 


SOCIAL   CONDITIONS  261 

ignorance  complete,  that  man  acquires  ideas  only  by  per- 
sonal experience.  For  the  believers  in  innate  ideas,  as 
well  as  for  the  sensationalists,  the  development  of  the 
man's  intelligence  was  limited,  then,  to  the  life  of  an  in- 
dividual. Each  carried  his  own  intellectual  baggage;  the 
point  of  departure  was  always  the  same.  Some  denied 
the  existence  of  any  connection  between  two  generations. 
Each  generation  was  subject  to  no  influence  except  what 
it  created,  was  moved  only  by  itself  and  usually  for 
itself. 

Social  life  was  regarded  as  the  necessary  consequence 
of  the  ideas  just  set  forth  and  not  as  the  result  of  a  suc- 
cessive development  of  humanity;  it  was  only  an  arbi- 
trary, artificial  institution  of  men. 

Society  supposes  necessarily  the  combination  of  indi- 
viduals. It  cannot  be  the  result  of  a  single  will.  Several 
wills  are  necessary  for  its  formation.  The  mechanical 
theory,  therefore,  explained  the  formation  of  society  as 
the  result  of  an  agreement  amongst  men,  a  social 
contract.  The  cause  of  this  contract  was  merely  the 
necessity  of  combining  separate  individual  forces  which 
were  too  weak  for  the  combat  with  external  nature. 
The  power  confided  to  society  had  no  other  end  than 
the  guaranteeing  of  external  security  and  internal 
order. 

The  organization  of  social  power  and  its  relations  with 
the  liberty  guaranteed  to  each  individual  took  the  form 
of  a  contract.  The  creators  and  organizers  of  society 
freely  consented.  The  conception  to  be  formed  of  a 
social  life  established  thus  was  a  wholly  individualistic 
one.  The  personality  of  the  individual  was  regarded  as 
the  dominating  principle  and  controller  of  social  life. 
Nobody  imagined  that  the  individual  depended  upon  the 
medium  in  which  he  lived;  for  the  whole  world,  on  the 
other  hand,  the  medium,  the  social  order,  was  fixed  and 
guided  only  by  the  free  will  of  individuals. 


262  THEORY  OF  LAW 

There  was  no  difference,  then,  between  the  conception 
of  man  living  before  the  existence  of  all  society  and  that 
of  man  living  in  the  midst  of  an  organized  society.  One 
part  of  a  mechanical  aggregate  suffers  no  change  from 
being  detached,  nor  does  it  alter  its  nature  by  being  in- 
corporated. A  part  of  a  living  organism,  on  the  other 
hand,  is  radically  changed  by  separation  from  that  organ- 
ism. Sometimes  it  dies;  sometimes,  if  it  continues  to  live 
its  own  independent  life,  it  is  profoundly  modified. 

In  the  mechanical  conception  of  society  man  was  in 
this  respect  like  a  portion  of  a  mechanical  aggregate,  and, 
even  out  of  the  pale  of  society,  was  considered  as  en- 
dowed with  the  same  qualities,  sentiments,  and  needs,  as 
if  he  were  a  member  of  society.  Further,  it  was  believed 
that  the  development  of  man  in  his  natural  state  was 
more  advanced  than  it  was  in  society.  Otherwise,  it  was 
said,  man  could  not  form  so  complete  and  abstract  an 
idea  as  that  of  society,  of  social  power,  of  individual 
liberty,  because  in  the  state  of  nature  man  had  only  the 
method  of  analogy  for  forming  such  a  conception. 
Meanwhile,  all  those  who  have  written  with  regard  to 
man  in  a  state  of  nature  have  asserted  that  society  was 
not  created,  that  social  power  was  not  established  other- 
wise than  with  the  conscious  purpose  of  realizing 
human  interests;  and,  in  the  different  proposed  outlines 
of  the  social  contract,  the  relations  between  social  power 
and  individual  liberty  have  always  been  clearly  indi- 
cated. 

This  purely  mechanical  theory  of  the  formation  of  so- 
ciety is  today  wholly  abandoned,  as  being  in  absolute 
contradiction  with  received  history  and  psychology. 
Everywhere  history  shows  us,  even  in  the  most  remote 
times,  man  existing  in  a  state  of  society.  There  is  no 
reason  to  suppose  that  the  famous  pre-social,  natural 
state  out  of  which  men  emerged  by  means  of  a  social 
contract,  ever  had  any  existence.  In  the  mind  of  the 


SOCIAL  CONDITIONS  263 

people  social  order  never  appeared  as  an  arbitrary  insti- 
tution, but  as  the  act  of  a  will  other  than  human,  as  an 
objective  order.  History  compels  us  to  recognize  the 
social  state  as  the  true  natural  state  of  man.  On  the 
other  hand,  psychology  teaches  us  that  the  intellectual 
development  of  man  is  specially  due  to  the  influence  of 
his  social  environment.  Our  intellectual  development, 
our  sentiments,  our  moral  principles,  all  depend  upon 
the  social  life,  upon  the  environment  into  which  we  are 
born  and  in  which  we  live. 

If  we  admit  the  existence  of  a  pre-social  state,  we 
must  recognize  necessarily  that  from  it  men  would  never 
develop  in  any  way;  their  minds  would  always  have 
remained  so  simple  that  it  would  have  been  impossible 
for  them  ever  to  rise  to  general  and  abstract  conceptions 
of  society,  to  conceptions  different  from  all  the  ideas 
suggested  by  their  surroundings,  ideas  such  as  those  of 
contract,  society,  public  power,  individual  liberty,  etc. 
Even  among  men  living  in  society  such  ideas  remain, 
with  many  of  them,  unrecognized.  If  society  were  not 
"natural"  how  could  such  ideas  have  become  familiar 
to  those  who  had  never  experienced  even  the  fact  of 
the  combination  of  a  few  men? 

Sociological  researches  have  shown  and  explained  that 
social  development  followed  in  its  progress  exact  rules. 
If  the  form  of  social  organization  is  not  an  arbitrary  and 
artificial  fact,  then  society  itself  cannot  be  a  human 
invention;  if  the  development  of  society  takes  place 
according  to  fixed  and  inviolable  laws,  then  the  exist- 
ence of  society  does  not  depend  upon  our  free  will. 

This  whole  doctrine  of  the  natural  state,  and  of  the 
formation  of  society  by  a  voluntary  and  conscious  com- 
bination of  men,  is  now  given  up  by  the  entire  world. 

We  turn  aside,  now,  from  the  whole  notion  of  such  a 
pre-social  state  and  of  a  social  contract  which  followed 
it.  Historic  observation  shows  us  that  such  a  state 


264  THEORY   OF   LAW 

never  existed;  even  the  utility  of  such  a  fiction  for  the 
scientific  explanation  of  social  phenomena  is  contested. 
The  celebrated  publicist,  Karl  Salomo  Zacharia,1  for 
example,  expressed  himself  in  the  following  terms  on 
this  subject:  "In  opposing  the  state  of  nature  to  the 
social  state  it  is  not  meant  to  say  that  men  really  lived 
at  any  given  time  in  a  state  of  nature.  Granted,  then, 
that  men  have  always  lived  together  in  society,  it  would 
be  still  necessary  to  distinguish  the  political  and  organ- 
ized life  from  the  so-called  state  of  nature,  which  does 
not  present  the  same  features.  Man  cannot  form  an 
idea  of  anything  except  by  comparing  it  with  an  object 
having  contrary,  or  at  least  distinct,  qualities."  The 
man  of  our  day  is  not  only  a  member,  but  a  product  of 
society.  Outside  of  society  we  cannot  imagine  him,  at 
least  such  as  he  is  in  society.  Outside  of  society  all  the 
development  of  sentiment  is  impossible,  at  least  so  far 
as  relates  to  sympathetic  sentiments,  altruistic  ones. 
Speech  is  an  impossibility;  man  outside  of  society  could 
not  attain  to  that  degree  of  intellectual  development 
which  so  profoundly  separates  him  from  the  animals. 
The  conception  of  this  famous  state  of  nature  is  no 
more  necessary  to  psychology  than  for  physiology  is  the 
conception  of  a  wholly  separate  existence,  distinct  and 
unconnected,  of  the  different  organs  of  a  living  being. 

The  purely  mechanical  theory  ought,  then,  to  be  abso- 
lutely given  up.  It  is  necessary  always  to  recognize  that 
it  has  played  a  great  role  in  history.  It  is  in  a  certain 
way  the  first  of  the  attempts  to  give  a  scientific  explana- 
tion of  social  phenomena.  Prior  to  it  the  social  life  was 
considered  as  the  product  of  an  outside  force,  indepen- 
dent of  society  and  its  elements.  It  was  not  thought 
social  life  could  be  determined  by  the  nature  of  society 
or  the  different  elements  of  which  it  was  composed,  but 
by  some  force  remaining  wholly  foreign  to  the  society. 

i  Zacharia.     Vierzig,  Bucher  von  Staate.     2  Ausg.  1838,  Bd.  I.     s.  49. 


SOCIAL  CONDITIONS  265 

The  society  was  considered  only  as  passive  and  inert 
matter  subjected  to  the  action  of  this  foreign  and  super- 
natural force. 

The  mechanical  theory,  on  the  contrary,  presented 
society  as  a  product  of  the  action  of  its  own  elements. 
Social  life  was  not  a  result  of  phenomena  produced  and 
directed  by  external  and  supernatural  powers,  but  a 
result  of  the  actions  of  social  elements;  that  is  to  say, 
of  men.  The  character  of  the  society  is  not  determined 
by  an  extraneous  will,  but  by  the  nature  of  its  elements. 
Such  a  conception  was  doubtless  an  advance  over  the 
opinion  held  up  to  that  time.  The  error  of  this  new 
conception  was  in  the  fact  that  it  did  not  recognize 
that  the  elements  composing  society  are  themselves 
social  products.  They  themselves  have  their  history, 
their  evolution,  do  not  come  fully  formed  from  celes- 
tial regions,  take  their  birth  from  men,  from  those 
men  who  have  already  lived  the  social  life  and  have 
acquired  a  certain  body  of  social  habits  by  trans- 
mission, imitation  and  the  establishment  of  usages  and 
customs. 

The  mechanical  conception  of  society,  in  our  day, 
has  a  historic  value  in  this  sense  that  it  is  a  concep- 
tion in  direct  opposition  to  the  organic  conception  now 
held,  which  is  a  reaction  against  the  mechanical  one. 
In  these  last  times  the  extreme  consequences  to  which 
the  organic  conception  has  been  drawn  have  led  certain 
choice  spirits  to  turn  back  towards  the  old  theory,  the 
previous  mechanical  explanation  of  society,  only  modi- 
fying a  little  its  form. 

This  modification  recently '  applied  to  the  old  me- 
chanical conception  consists  in  the  fact  that  it  is  ad- 
mitted that  society  in  its  outlines  is  established  inde- 
pendently of  the  human  will,  but  affirms  at  the  same 
time  that  its  progressive  development  has  resulted  more 
and  more  from  the  interposition  of  human  wills.  It 


266  THEORY   OP  LAW 

is  only  in  the  advanced  state  of  its  evolution  that  it 
can  be  said  that  society  is  really  a  product  of  human 
volition.  The  representatives  of  this  last  opinion  are, 
in  France,  M.  Fouillee,  and  in  Russia,  Kareiev. 

M.  Fouillee  considers  society  as  an  organism  con- 
tractual in  this  sense:  that  its  organic  character,  a 
character  predominant  in  society  at  its  origin,  gives 
place  more  and  more  to  relations  freely  established 
among  men.  Kareiev  admits,  equally,  this  same  opin- 
ion, but  under  another  form.  According  to  him  society 
in  its  evolution  is  compelled  to  become  a  natural  fact, 
a  combination  of  voluntary  facts  produced  by  the  polit- 
ical art  of  man.  Consequently,  here  is  the  point  which 
distinguishes  this  new  theory  from  the  old  mechanical 
one, — the  authors  whom  we  have  just  cited  do  not  con- 
sider the  agreement,  the  formation  of  society  by  way 
of  contract,  as  the  starting  point  of  social  life,  but,  on 
the  contrary,  as  the  result  of  a  long  social  evolution, 
as  the  purpose  of  social  progress.  All  civilization,  looked 
at  in  this  relation,  is  only  the  gradual  subordination  of 
social  life  to  human  ideals. 

The  opinions  of  M.  Fouillee  and  Kareiev  have  their 
origin  in  an  undoubted  fact,  that  of  the  influence  of 
opinions  and  human  tendencies  over  social  life.  Man, 
as  the  member  of  a  society  which  does  not  answer  to 
the  ideal  he  has  formed,  is  moved  to  get  rid  of  this  con- 
tradiction and  to  modify  social  relations  in  accordance 
with  his  ideals.  The  generations,  one  after  the  other, 
continue  unceasingly  this  same  labor  and  elaborate 
slowly  a  conscious  reorganization  of  society.  This  work 
cannot  fail  of  a  result.  Little  by  little  human  ideas 
take  form  and  are  realized  in  the  social  environment. 
More  and  more  society  moves  towards  an  end  which 
is  sought  for  it,  which  is  wished  by  all  the  men  who 
have  labored  at  its  reorganization.  There  is  here  a 
product  of  their  agreements  and  it  is  in  this  sense  we 


SOCIAL  CONDITIONS  267 

may  say  that  society  has  a  contractual  character.  In  other 
terms,  society  becomes  more  and  more  the  incarnation  of 
human  ideas  and  the  product  of  human  art  and  effort. 

We  cannot  accept  meanwhile  this  opinion  without 
making  some  reservations.  First  of  all,  the  notion  of  a 
conventional  organism  carries  in  itself  an  invincible  con- 
tradiction. Organism  and  contract  are  two  conceptions 
which  exclude  each  other.  If  we  keep  to  the  usual 
meaning  of  words,  that  which  is  organized  is  always 
in  opposition  to  that  which  is  artificial,  arbitrary,  pro- 
duced by  the  conscious  will  of  man. 

All  contract  is  impossible  without  the  agreement  of 
conscious  wills.  One  cannot  in  a  general  way  affirm 
that  in  the  course  of  time  society  will  take  on  a  con- 
tractual character.  Contract,  as  we  find,  supposes,  nec- 
essarily, the  harmony  of  several  wills,  and  the  social 
life,  which  is  the  result  of  desire  and  aspirations  of  a 
long  course  of  generations,  is  not  the  expression  of  any 
single  will  common  to  all  these  generations.  Social  as- 
pirations change,  in  fact,  with  each  generation.  The 
order  which  we  assert  in  social  relations,  that  succes- 
sion which  history  shows  us,  does  not  correspond  to  any 
ideal  traced  in  advance  by  the  successive  generations. 
There  can  be  no  question  of  contract  between  genera- 
tions. Even  in  a  single  one  the  ideal  does  not  manifest 
itself  fairly  by  contract.  There  exist  in  each  generation 
parts  which  are  not  in  agreement.  The  influence  of  these 
parts  on  the  social  life  is  determined  only  with  great 
difficulty,  according  to  objective  social  conditions. 

The  form  in  which  Kareiev  expressed  his  opinion  as 
to  the  origin  and  development  of  society  is  more  for- 
tunate. It  does  not  contain  such  an  evident  contradic- 
tion as  that  of  M.  Fouillee  with  his  conception  of  a 
contractual  organism,  but  it  raises,  however,  several 
serious  objections. 

The  product  of  art  is  solely  the  product  of  the  con- 


268  THEORY  OF  LAW 

scious  will  of  man.  An  unexpected,  an  accidental,  re- 
sult of  a  human  act  is  not  a  product  of  art.  Well,  the 
ideas  which  have  marked  most  strongly  the  work  of  the 
centuries,  those  which  have  left  the  deepest  imprint,  the 
history  is  there  to  prove  it,  have  resulted  in  consequences 
which  failed  to  answer  the  provisions  of  their  producers. 

Let  us  look,  for  example,  at  what  took  place  under  the 
French  revolution.  The  constitutions  of  1791  and  of 
1793  are,  it  is  true,  reproductions  more  or  less  complete 
of  the  theories  of  Rousseau  and  Montesquieu,  but  these 
constitutions  never  reached  their  application.  Most  of 
their  dispositions  have  remained  a  dead  letter.  In  fact, 
the  general  progress  of  the  revolution,  and  the  social 
state  which  has  followed,  are  not  consequences  of  those 
constitutions.  The  revolution  has  not  been  that  which 
its  producers  themselves  wished;  it  has  disappointed  its 
organizers. 

If  anyone  is  shown  merely  the  facts  which  have  de- 
veloped themselves  up  to  this  time,  the  organization  of 
the  state  under  Napoleon  and  under  the  restoration, 
it  will  be  impossible  by  the  recital  alone  of  these  facts 
to  form  even  a  proximate  conception  of  Rousseau's 
social  theories.  But  if  we  put  the  same  person,  on  the 
other  hand,  before  a  work  of  art  he  will  recognize  at 
once  the  idea  of  the  artist  who  did  the  work.  There 
will  be  no  need  of  explanation.  It  will  itself  express 
the  idea  which  produced  it  better  than  can  any  other 
demonstration. 

We  might  compare  humanity  to  a  work  of  art  if 
humanity  possessed  only  one  idea  or  combination  of 
ideas  common  to  all  men,  realizing  itself  under  different 
forms  of  social  life  and  of  which  the  ideas  of  different 
generations  and  of  separate  men  would  be  only  partial 
manifestations;  but  the  existence  of  such  an  idea  of 
combination,  -sole,  common  to  all  humanity,  is  quite 
problematic. 


SOCIAL  CONDITIONS  269 

Independently  of  these  conceptions,  the  opinion  of 
Kareiev  raises  still  another  objection.  His  conception 
supposes  that  the  influence  of  human  aspirations  is 
always  growing  stronger  and  that  the  action  of  objective 
factors  upon  the  social  development  is  always  diminish- 
ing. As  a  matter  of  fact,  such  objective  factors  like  the 
influence  of  nature,  of  famine,  of  new  discoveries,  con- 
tinue to  act  in  a  most  powerful  fashion  even  in  our  times. 
Some  inventions  of  a  purely  technical  character,  without 
any  connection  with  the  men's  social  ideal,  as,  for  ex- 
ample, the  invention  of  gunpowder,  or  that  of  the  steam 
engine,  have  had  a  greater  influence  over  social  life  than 
any  number  of  theories.  It  would  be  strange  to  believe 
that  modern  social  life  is  an  incorporation  of  the  ideas 
of  Schwartz  and  Watt,  and  there  is  no  good  reason  to 
assume  that  in  the  future  such  factors  will  have  ceased 
to  have  their  influence  over  the  social  development. 
We  cannot,  then,  declare  that  society  becomes  more  and 
more  exclusively  the  work  of  man,  and  of  his  will. 


270  THEORY  OP  LAW 


Section  36.     The  Organic  Theory 

The  organic  conception  of  society  is  a  quite  modern 
idea,  and  hardly  appeared  before  the  end  of  the  XVIII 
century.  To  be  sure,  even  in  the  most  remote  antiquity, 
we  meet  with  something  like  it,  with  comparisons  be- 
tween society  and  the  man  or  the  animal.  Plato's  dia- 
logue, Politicus,  rests  entirely  upon  such  a  resemblance; 
and  Hobbes  himself,  the  originator  of  the  state  of  nature, 
compares  the  state  to  a  leviathan.  But  the  conception 
of  an  organism  in  the  particular  sense  which  we  give 
it  today  was  then  unknown.1  In  Aristotle  the  word 
organicus  is  by  no  means  the  term  opposed  to  mechani- 
cus,  and  the  use  of  this  word  in  the  sense  meant  by 
Aristotle  lasted  down  to  the  end  of  the  XVIII  century. 
Organicus  and  instrumental  are  synonymous  expressions. 
The  leviathan  state  of  Hobbes  is  only  an  immense  ma- 
chine. It  is  not  a  living  organism  but  an  automaton. 
Hobbes,  convinced  materialist  as  he  was,  naturally  did 
not  recognize  some  essential  distinctions  between  ma- 
chine and  animal.  Such  is  also  the  view  of  the  Car- 
tesians. For  Descartes  and  his  successors,  as  for  the 
materialists,  animals  were  only  machines  moved  in  an 
automatic  fashion.  It  was  the  same  with  the  human 
body.  The  soul  in  connection  with  the  body  played  the 
part  of  an  indifferent  spectator.  Spinoza  and  Leibnitz 
had  also  the  same  opinion  as  regards  the  relation  of  the 
soul  and  body,  but  evidently  this  was  not  the  opinion 
of  the  whole  world.  To  this  mechanical  conception  of 
life  in  man  and  the  animal  is  opposed  that  of  spiritism, 
whose  representatives  in  antiquity  were  Pythagoras, 
Plato,  Aristotle,  Hippocrates,  and  in  the  middle  ages 

Claude   Bernard,   "La  Science  Experimentale,"  1878,  pp.    149-212.      Defini- 
tions de  la  vie :  Les  Theories  anciennes  et  la  science  moderne. 


SOCIAL  CONDITIONS  271 

Paracelsus,  Van  Helmont,  and  the  scholastics.  It  is 
above  all  in  the  doctrine  of  the  celebrated  physician 
Stahl  who  lived  in  the  XVIII  century  that  this  last 
theory  has  been  most  completely  set  forth. 

According  to  Stahl,  the  body  is  only  an  inert  instru- 
ment, the  puppet  of  some  immaterial  force  and  having 
no  activity  of  its  own.  We  find  in  Paracelsus  and  Van 
Helmont  such  a  doctrine  as  to  the  existence  in  our 
organism  of  such  immaterial  forces  which  have  all 
power  over  the  different  bodily  organs.  In  Stahl 
all  these  forces  are  replaced  by  a  single  one, — by 
the  soul,  the  invisible  time  marker,  who  controls 
the  movements  of  all  the  functions  of  the  or- 
ganism. 

So  in  the  partisans  of  the  mechanical,  as  in  those  of 
the  spiritistic  theory,  while  the  explanation  of  life  is 
different,  in  the  one  as  in  the  other  the  body  is  equally 
understood  as  a  mechanism.  In  both  theories  it  is 
only  a  machine.  The  difference  consists  in  that  the 
machine  is  in  one  case  considered  as  acting  automat- 
ically, in  the  other  as  the  passive  instrument  of  the 
soul,  as  without  independent  activity. 

Out  of  these  theories  there  could  scarcely  arise  any 
clear  opposition  between  the  organic  and  the  mechanical 
conceptions.  It  was  only  after  the  appearance  of  the 
vital  theory,  due  to  Bichat,1  that  such  an  explanation 
was  offered.  Bichat,  who  lived  at  the  end  of  the  XVIII 
century,  affirmed  that  it  was  necessary  to  seek  the  cause 
of  vital  phenomena,  not  in  some  immaterial  principle, 
but,  on  the  contrary,  in  qualities  possessed  by  the 
matter  producing  these  phenomena.  According  to 
him  the  phenomena  of  life  are  explained  by  special 
vital  properties  innate  in  the  living  matter  which  con- 
stitutes the  living  organism.  These  vital  properties 
are  not  only  distinct  ones,  but  it  may  be  said  that  they 

i  Died  1802.     His  General  Anatomy  appeared  the  year  before. 


272  THEORY  OF  LAW 

are  opposed  to  the  general  physical  and  chemical  proper- 
ties of  matter.  Physical  properties  are  eternal  and  in- 
separable from  matter;  vital  properties,  on  the  contrary, 
are  transmissible. 

The  inert  matter  which  enters  into  the  formation 
of  every  organism  is  thoroughly  interpenetrated  with 
these  vital  properties,  but  for  a  time  only,  since  by 
their  essential  character  these  vital  properties  are  in 
time  consumed  and  exhausted.  At  the  beginning  of 
life  they  are  in  the  phases  of  growth,  stationary  dur- 
ing mature  existence,  they  decrease  in  later  life  to  dis- 
appear with  death.  This  is  the  whole  development  of 
living  beings.  All  life  is  only  a  long  struggle  between 
physical  and  vital  properties.  Health  and  disease  are 
merely  different  phases  of  it.  Recovery  is  a  victory 
of  the  vital  properties  and  death  of  the  physical 
ones. 

The  doctrine  of  vitalism  was  destined,  as  we  easily 
see,  to  produce  a  complete  revolution  in  the  notions 
as  to  the  connection  between  mechanical  and  organic 
phenomena  which  had  till  then  prevailed.  It  created 
at  once  a  complete  opposition  between  living  and  dead 
matter,  between  a  mechanism  and  an  organism,  between 
physical  and  biological  sciences.  Moreover,  vitalism 
permitted  the  showing  of  the  connection  between  the 
different  parts  of  the  organism  and  of  those  parts  with 
the  whole,  and  attributing  to  the  organism  an  inde- 
pendent activity  of  its  own  whose  principle  was  in 
the  properties  of  the  organism  and  of  each  of  its 
parts. 

It  was  at  the  end  of  the  XVIII  century  that  there 
appeared  for  the  first  time  in  philosophy  a  clear  oppo- 
sition between  the  ideas  of  organism  and  mechanism, 
first  in  Kant  and  after  him  in  Schelling.  The  philo- 
sophic system  of  this  last  author  is  a  profound  organic 
conception  logically  developed  of  the  entire  world.  He 


SOCIAL  CONDITIONS  273 

explains  all  the  phenomena  of  the  universe  by  their 
analogy  to  the  organic  life. 

To  the  influence  of  these  new  theories  must  be  added 
the  historical  tendencies  which  had  then  already  mani- 
fested themselves.  The  mechanical  conception  of  the 
world  was  the  negation  of  the  idea  of  development.  A 
mechanism  in  its  essence  is  an  unchangeable  thing.  It 
ignores  development,  for  mechanisms,  apart  from  each 
other,  are  connected  by  no  succession  or  evolution. 
The  mechanical  theory,  therefore,  is  from  its  nature 
anti-historical.  It  explains  social  organization  not  as 
the  result  of  a  long  evolution,  but  as  an  artificial  in- 
stitution of  man's,  which  may  vary  according  to  men's 
tastes  and  without  relation  to  the  past.  The  will  of 
the  present  generation,  behold  in  it  the  explanation 
of  social  phenomena.  It  sees  no  connection  between 
past  and  present.  For  it  the  latter  does  not  require 
the  explanation  which  the  former  furnishes. 

The  historical  conception,  however,  emphasizes  this 
connection.  In  seeking  to  establish  its  analogy,  the 
historical  doctrine  naturally  turns  to  the  organic  side. 
It  is  in  such  a  medium  that  the  past  and  heredity  play 
an  important  part.  For  all  these  reasons  the  organic 
conception  of  social  phenomena  rapidly  became  very 
popular  and  the  prevailing  one  of  the  XIX  century. 
It  found  partisans  among  thinkers  of  the  most  diverse 
schools.  The  sociologists  as  well  as  the  positivists 
adopted  it.  The  sociological  doctrine  of  Comte  harmo- 
nizes well  with  the  organic  conception,  and  the  connec- 
tions between  his  theory  and  the  vitalist  one  are  manyf. 

In  his  biological  doctrine  Comte  takes  as  his  point 
of  departure  the  vital  properties  of  Bichat.  He  rejects, 
it  is  true,  the  idea  of  an  antagonism  between  physical 
and  vital  properties  and  admits  the  harmony  of  the 
organism  with  its  surroundings  as  a  necessary  condition 
of  life.  He  emphasizes,  too,  the  influence  which  meta- 


274  THEORY    OP   LAW 

physical  doctrines  had  had  over  Bichat,  and  even 
proposes  in  respect  to  this  some  rectifications 
of  detail.  This  influence,  said  he,  is  an  extraneous 
addition  which  Bichat  himself  has  attenuated  in  his 
later  books.  Comte1  appropriated  the  fundamental 
idea  of  vitalism  and  rejected  the  notion  that  the 
phenomena  of  life  can  be  drawn  from  those  of 
physics  and  chemistry. 

Sharing  in  Bichat 's  ideas  and  admitting  with  him 
the  opposition  there  is  between  vital  phenomena  and 
all  others,  Comte  naturally  recognizes  society  as  an 
organism,  being  unable  to  deny  the  resemblance  be- 
tween vital  and  social  phenomena. 

The  organic  sociologic  doctrine  took  very  different 
forms.  In  Schelling  and  Krause's  organic  school  the 
vital  point  is  this, — in  social  as  in  organic  life  all  the 
phenomena  are  dependent  upon  one  another,  are  recip- 
rocally conditioned.  2 

Others,  like  Bluntschli,  for  example,  content  them- 
selves with  establishing  an  analogy  between  social  insti- 
tutions and  external  forms  of  the  human  body.  Thus 
he  assimilates  government  to  the  head,  as  it  is  the  head 
of  the  state,  the  ministry  of  the  interior  to  the  ears,  and 
that  of  foreign  affairs  to  the  nose.  For  him  the  dis- 
tinction between  state  and  church  is  that  which  separates 
man  and  wife. 3 

But  of  all  the  forms  which  the  organic  theory  takes, 
the  most  accepted  was  that  which  agreeing  with  posi- 
tivism identifies  the  laws  of  life  with  those  of  society. 
This  form  finds  partisans  in  all  modern  literatures.  It 
is  in  Spencer,  Schaffle  and  Lilienfeld  that  it  has  received 
its  completest  development.  I  shall  develop  especially 

»  Cours  de  Philosophic.  4th  ed.,  vol.  III.     14th  Lecon,  p.  187. 

« " Bedingheit."  Krause  distinguishes  it  from  " Bedingtheil,"  which  means 
a  passive  state.  Bedingheit,  on  the  other  hand,  means  a  mutual  relation  at  the 
same  time  passive  and  active.  System  der  Rechtsphilosophie,  s.  48-50. 

8  Bluntschli.     Psychologic  Studien  iiber  Staat  und  Kirche,  1841. 


SOCIAL  CONDITIONS  275 

Spencer's  conception,  as  he  is  the  best  authorized  repre- 
sentative of  the  doctrine. 

If  we  observe  first  of  all  the  general  character  of 
the  organic  theory  of  society,  we  ought  to  recognize 
that  the  identification  of  the  laws  of  life  with  the 
laws  of  society  does  not  rest  upon  a  sound  foundation. 
The  observed  resemblances  between  social  phenomena 
and  those  of  organic  life  do  not  allow  the  combining 
of  them  to  oppose  both  to  inorganic  phenomena.  To 
establish  such  a  classification  we  must  show  that  the 
resemblance  between  social  phenomena  and  those  of 
organic  life  is  much  greater  than  that  between  those 
of  organic  life  and  those  of  inorganic  matter.  It  would 
be  necessary  to  show,  moreover,  and  this  is  a  very  im- 
portant point,  that  the  differences  between  social  phe- 
nomena and  vital  phenomena  are  not  so  numerous  or 
important  as  those  between  the  phenomena  of  the  organic 
and  those  of  the  inorganic  world. 

As  long  as  such  proof  is  not  exhibited  there  is  no 
reason  for  opposing  life  and  society  to  the  inorganic 
world.  It  would  be  necessary,  on  the  contrary,  to  adopt 
a  triple  classification,  into  inorganic,  organic  and  social 
phenomena. 

But  the  partisans  of  the  organic  theory  of  society 
do  not  admit  this  classification,  and  address  all  their 
arguments  to  the  incontestable  points  of  resemblance 
between  the  society  and  the  organism,  and  to  the 
analogous  processes  to  which  both  owe  their  birth. 

Thus  do  both  Lilienfeld  and  Spencer.  They  set  forth 
the  correlation  which  there  really  is  between  the  phe- 
nomena of  life  and  those  of  society.  Like  a  living 
organism,  they  say,  society  grows,  differentiates  its 
structure,  develops  special  functions  and  separates  from 
its  own  substance  parts  capable  of  an  independent  life. 
Hence,  these  authors  conclude  that  society  is  only  an 
organism.  Such  a  broad  comparison  already  is  of 


276  THEORY  OF  LAW 

a  kind  to  throw  doubt  over  the  accuracy  of  their 
theory. 

Even  when  we  admit  the  undoubted  analogy  at  some 
points  between  the  organism  and  society,  the  complete 
analogy  between  them  can  be  established  only  under 
one  condition  whose  absence  reduces  the  importance  of 
the  concessions  which  the  organic  school  has  attained. 
The  analogies  are  possible  only  *as  we  compare  the 
phenomena  of  a  highly  developed  society;  not  to  a 
highly  complete,  but  to  a  very  primitive  organism. 
Without  this  it  would  be  impossible  to  find  analogies 
between  all  the  organic  phenomena  and  all  social  ones. 
So,  if  it  is  true  that  there  is  a  correlation  between  the 
details  of  an  organic  life  and  those  of  a  social  unit,  it 
is  equally  true  to  say  that  this  correlation  exists  only 
so  far  as  the  whole  is  under  consideration. 

It  cannot  be  said  that  the  most  advanced  forms 
of  society  correspond  to  the  most  advanced  forms 
of  organic  life  or  that  the  least  perfect  forms  of  the 
latter  correspond  to  the  most  rudimentary  forms  of  the 
former.  Quite  often,  on  the  contrary,  the  most  advanced 
forms  of  social  life  resemble  much  more  the  rudimentary 
than  they  do  the  advanced  forms  of  organic  life.  If  only 
this  general  correlation  exists,  doubt  rises  immediately, 
and  we  ask  if  it  is  quite  certain  that  social  life  presents 
us  an  organism,  if  it  is  not  rather  a  combination  of 
phenomena  in  some  respects  like  those  of  organic  life. 

Another  defect  in  this  theory  of  the  equivalence  of 
society  and  organism  is  its  vagueness  and  arbitrariness. 
A  comparison  of  Spencer's  and  Lilienfeld's  doctrines 
from  this  point  of  view  is  particularly  interesting. 
According  to  Spencer  the  individuals  who  form  a  society 
may,  according  to  their  social  position,  be  compared 
to  different  cells  of  the  organism,  the  working  classes 
corresponding  to  the  digestive  organs,  the  ruling  classes, 
to  nerves,  etc. 


SOCIAL  CONDITIONS  277 

Lilienfeld,  on  the  contrary,  believes  that  the  men  can 
be  compared  only  to  the  nerve  cells.  The  nervous 
system  of  the  social  organism  would,  according  to  him, 
include  not  only  the  governing  organs  of  society,  as 
Spencer  thought,  but  quite  all  the  persons  composing  the 
society.  The  nervous  system  of  a  social  group  would  be 
its  entire  population.  The  other  elements  are  not  made 
up  of  men.  The  distributive  system  is  formed,  for  ex- 
ample, by  the  network  of  the  means  of  communication. 

The  difference  between  Spencer's  theories  and  those 
of  Lilienfeld,  I  think,  is  a  very  important  one.  Both, 
however,  establish,  though  in  different  ways,  with  equal 
success  a  parallel  even  in  the  lowest  details  between 
society  and  the  living  organism. 

The  same  uncertainty  may  be  found  in  the  conclu- 
sions reached  by  the  organic  theories.  Most  of  the 
partisans  of  this  theory  conclude,  indeed,  that  the  state's 
field  of  action  ought  necessarily  to  be  extended  and  the 
individual's  restricted;  that  the  individual  ought  to  be 
subjected  to  society.  Thus  Schaffle  in  his  organic  doc- 
trines ends  with  the  conclusions  of  academic  socialism. 
Spencer,  resting,  too,  upon  his  doctrine  that  the  state 
is  nothing  else  than  an  organism,  reaches  the  precisely 
opposite  conclusion,  the  individualistic  doctrines  of  free 
competition,  and  an  extreme  limitation  of  the  state's 
social  action. 

The  third  defect  of  this  organic  conception  of  society 
is  that  it  does  not  answer  to  the  general  object  sought 
in  scientific  hypotheses.  Every  such  hypothesis  has  for 
its  end  the  facilitating  and  advancing  the  application 
of  the  deductive  method  to  some  branch  of  science.  But 
if  there  is  no  exact  correlation  of  the  forms  of  organic 
life  with  social  ones,  and  if  their  comparison  leaves  the 
field  open  to  arbitrary  and  contradictory  conclusions, 
then  the  organic  theory  evidently  cannot  serve  as  a  solid 
basis  for  scientific  deductions. 


278  THEORY  OF  LAW 

Up  to  the  present  time,  in  fact,  the  organic  doctrine 
has  led  to  no  distinct  conclusion;  has  not  to  its  credit  a 
single  previously  unknown  principle.  It  has  given  to 
matter  which  already  existed  only  a  novel  form;  has  only 
furnished  a  new  system  of  exposition,  a  fresh  rubric,  a 
changed  terminology.  It  has  brought  nothing  new  into 
the  matter.  It  is,  therefore,  at  least  useless.  We  might 
even  affirm  with  proofs  to  support  us,  that  it  has  been 
harmful.  All  these  comparisons  of  the  social  state  and 
organic  life  inflame  the  mind,  open  up  a  vast  horizon 
to  the  imagination  and  appear  very  attractive;  but 
they  are  of  a  nature  to  turn  the  student  away  from  less 
easy  and  agreeable  but  more  fruitful  labor,  the  gather- 
ing up  of  new  materials  for  the  explanation  of  the  dif- 
ferent peculiarities  presented  by  social  phenomena. 

Such  are  the  defects  of  the  organic  theory  as  a  theory. 
Let  us  look  at  some  of  its  details.  Spencer  at  the  begin- 
ning of  his  argument  tries  to  prove  the  impossibility  of 
seeing  in  society  only  a  mechanical  aggregate.  This 
seems  for  him  to  follow  from  society's  being  made  up  of 
living  parts;  but  that  which  is  made  up  of  separately 
living  parts  cannot  form  a  single  living  whole. 

Then  examining  the  question  as  to  whether  society 
ought  to  be  considered  as  a  peculiar  aggregate  distinct 
equally  from  mechanical  and  from  organic  ones,  Spencer 
answers  in  the  negative  and  finds  that  in  all  their  essen- 
tial properties  organic  and  social  aggregates  present 
complete  resemblances.  The  characteristic  peculiarities 
of  a  living  organism  are,  according  to  Spencer,  its  growth, 
differentiation  of  its  structure,  the  specialization  of  func- 
tions, its  multiplication  by  birth  and  its  mortality.  He 
affirms  that  social  life  presents  also  such  peculiarities. 
The  development  of  society  is  always  accompanied  by 
its  extension  which  constitutes  its  growth.  The  phe- 
nomena of  growth  in  the  social  order  arise  under  forms 
analogous  to  those  of  growth  in  the  organic  world;  by 


SOCIAL  CONDITIONS  279 

the  interior  multiplication  of  cells  within  the  human 
society  which  is  already  an  aggregate,  and  by  the  an- 
nexation of  new  cells  from  without,  as  in  states  by  con- 
quest and  annexation  of  new  provinces. 

The  development  of  society  is  expressed,  moreover, 
not  merely  by  its  extension,  but  also  by  the  transition 
from  a  condition  in  which  its  composition  and  structure 
are  uniform  towards  one  where  the  same  elements  be- 
come more  varied,  by  the  formation  of  castes,  of  differ- 
ent social  classes,  by  the  creation  of  social  establishments 
and  a  constantly  increasing  specialization  in  each  one's 
functions. 

Spencer  shows  that  there  is  still  at  this  point  of  view 
a  resemblance  not  only  in  the  whole,  but  even  in  the 
different  forms  of  the  differentiation  and  specialization. 
So  the  gradual  advance  of  differentiation  of  governing 
bodies  in  a  state  corresponds  in  all  points  to  the  differ- 
entiation of  the  nervous  system. 

Among  the  lower  animals  there  is  but  one  system,  in 
higher  ones,  two:  the  nervous  system  that  governs  ex- 
ternal connections  of  the  organism,  and  the  sympathetic 
which  controls  the  internal  functions.  In  the  same 
way  in  primitive  states  there  is  only  one  system.  In 
the  beginning  the  military  and  civil  administrations 
are  compounded  together;  but  little  by  little,  by  the  in- 
cessant development  of  society,  they  are  separated  into 
two  distinct  systems. 

The  phenomena  of  multiplication  among  inferior  beings, 
segmentation  and  budding,  are  compared  by  Spencer  to 
phenomena  which  rise  when  a  state  is  divided  up  into 
independent  ones  or  when  colonies  detach  themselves 
from  it.  According  to  Spencer  the  death  of  a  society 
might  be  difficult  to  establish  in  such  a  way.  The  nat- 
ural death  of  societies,  however,  is  only  hard  to  exhibit 
because  the  international  order  is  so  ill  assured  that  the 
dominant  states  crush  the  weaker  ones  before  it  happens. 


280  THEORY  OF  LAW 

But  when  durable  and  solid  peace  shall  be  established 
in  the  international  relations  of  states,  their  artificial 
death  will  disappear  and  we  shall  have  only  the  natural 
death  of  societies.  So,  according  to  Spencer,  it  is  with 
the  society  absolutely  as  with  the  organism;  it  grows, 
multiplies,  is  differentiated,  specialized  and  dies. 

But  alongside  these  resemblances  are  there  not  also 
distinguishing  differences?  Spencer  says  not.  It  is 
objected  most  frequently  that  society  is  marked  by  the 
characteristic  that  there  is  no  material  bond  between 
the  human  particles  that  make  it  up  to  consolidate  its 
different  social  elements  into  a  single  whole;  it  has  not 
continuity. 

This  is  only  an  apparent  difference,  says  Spencer. 
Just  as  in  the  animal  the  parts  which  compose  it  are 
each  of  a  different  degree  of  vitality,  so  in  the  composi- 
tion of  society  men  are  not  alone  in  forming  it.  Terri- 
tory plays  an  important  part,  and  by  its  intermediation 
forms  a  material  bond  between  individuals. 

The  only  difference  which  Spencer  recognizes  between 
society  and  the  organism  is  that  in  the  latter  the  whole 
is  the  sole  end  in  view,  while  each  part  is  only  a  means, 
whereas  in  society  the  contrary  is  true.  The  individuals 
constitute  the  end  in  the  case  of  society,  and  the  latter 
is  only  a  means  for  realizing  human  purposes. 

Such  in  outline  is  Spencer's  theory.  Does  it  advance 
really  the  proof  of  the  organic  nature  of  society?  As  a 
matter  of  fact  if  we  do  find  the  resemblances  which  he 
shows,  there  are  established  alongside  of  them  some 
essential  differences.  The  two  forms  of  growth  observed 
in  living  organisms  ought  to  be  compared,  says  Spencer, 
to  those  revealed  in  the  developments  of  social  group- 
ings. Society  grows,  also,  either  by  annexing  new  social 
groups  come  from  without,  or  by  the  multiplication 
of  its  own  numbers.  But  growth  by  annexing  new 
groups  from  without  is  something  wholly  impossible  for 


SOCIAL  CONDITIONS  281 

the  organism;  or  at  least  such  growth  is  possible  only 
for  organisms  presenting  the  very  lowest  degree  of  dif- 
ferentiation in  their  structure.  Organisms  having  a  com- 
plex and  developed  structure  cannot  grow  by  this 
process. 

In  social  life,  on  the  contrary,  we  meet  with  this  form 
of  growth  in  the  most  complex  social  organizations.  The 
history  of  human  societies,  also,  shows  us  numerous  ex- 
amples of  societies  annexing  some  organ  having  a  highly 
special  function  which  it  kept  after  such  annexation, 
after  entering  into  a  new  social  aggregate.  The  history 
of  modern  states  is  full  of  examples  of  the  annexation  of 
agricultural  districts,  of  industrial  centres,  of  commercial 
parts,  fortresses,  etc.,  according  to  Spencer  distinct  or- 
gans and  social  differentiations  of  the  social  body.  The 
same  phenomenon  appears  in  the  emigrations  of  indi- 
viduals from  one  country  to  another  where  they  con- 
tinue to  follow  their  profession.  An  analogous  fact  ap- 
pears when  a  member  of  a  foreign  dynasty  becomes 
sovereign  of  a  state;  when  artists,  professors,  capitalists 
and  others  migrate  into  another  country. 

Spencer's  view  of  the  r61e  played  by  emigrations  of 
peoples  is  that  it  is  an  insignificant  fact  without  weight. 
It  is  sufficient  to  recall  the  coming  of  the  negroes  into 
America,  and  in  our  day  the  beginning  of  Chinese  immi- 
gration into  the  same  country.  The  whole  history  of 
America  gives  the  lie  direct  to  Spencer's  theory. 

The  specialization  of  function  though  equally  present 
in  social  life  presents  some  distinct  differences  from  that 
found  in  living  organisms.  Specialization  in  society  is 
necessarily  a  mark  of  a  certain  degree  of  development. 
The  army,  for  instance,  once  consisting  of  all  the  males 
in  the  society,  specializes  with  time  into  permanent  mili- 
tary organizations,  mercenary  or  otherwise,  forming  a 
distinct  social  element. 

But,  while  in  the  organism  the  succession  of  such  steps 


282  THEORY  OP  LAW 

of  specialization  follows  in  all  its  phases  the  same  invari- 
able advance,  it  is  quite  otherwise  in  social  life.  In 
society  the  specialization  is  not  without  limits;  when  it 
reaches  a  certain  degree,  an  inverse  development  com- 
mences. So  in  the  universal  military  service  which  has 
been  introduced  into  almost  all  the  modern  states,  the 
barrier  which  separates  the  army  from  the  rest  of  society 
is  reduced,  and  there  is  something  of  a  return  to  the 
ancient  times  when  the  whole  people  and  not  a  fraction 
of  them  make  up  the  army. 

This  consideration  leads  us  naturally  to  another  essen- 
tial difference.  In  the  organism  each  cell  participates  in 
a  sole  rigorously  determined  function.  The  same  cell 
cannot  be  by  turns  a  bone  and  a  nerve  cell.  In  society, 
on  the  other  hand,  we  find  this  diversity  in  the  functions 
of  a  single  individual.  The  same  person  may  be  succes- 
sively a  laborer  on  the  soil,  a  corporation's  secretary, 
member  of  a  jury,  or  of  a  city  council,  of  a  legislative 
assembly  or  even  president  of  the  republic;  and  this  ac- 
cumulation of  functions  in  themselves  very  different,  does 
not  diminish  but,  on  the  contrary,  augments  with  the 
development  of  society.  The  same  thing  might  be  said 
as  to  the  phenomena  of  multiplication. 

The  separation  of  parts  in  a  state  presents  in  reality 
only  a  superficial  and  wholly  exterior  resemblance  to  the 
multiplication  of  organisms.  In  both  cases  there  is  an 
element  which  separates  out  and  continues  an  indepen- 
dent existence.  But  in  the  organic  life  the  multiplication 
of  organisms  operates  to  maintain  the  existence  of  the 
species.  The  individual  is  of  the  same  type  as  his 
progenitor,  and  with  them  he  forms  a  single  species. 
Multiplication  is  above  all  the  production  of  like 
beings. 

In  social  life,  on  the  contrary,  the  separation  of  parts 
gives  results  quite  different.  If  a  province  separates 
from  the  state,  that  separation  is  the  consequence  of  a 


SOCIAL  CONDITIONS  283 

distinction,  of  some  peculiarity  which  provokes  the  rup- 
ture of  the  two  political  groups.  Ordinarily  in  such 
cases  there  is  a  national,  religious,  or  political  antago- 
nism. The  part  which  cleaves  from  the  other  presents 
naturally  in  its  new  independent  organization  these  es- 
sential differences. 

The  examples  of  North  America  and  of  the  Balkan 
Principalities  confirm  what  has  just  been  said, — every 
separate  state  has  a  very  distinct  individuality.  For  this 
reason  the  notion  of  species  is  not  applicable  to 
states. 

With  the  subject  of  multiplication  is  closely  bound  up 
that  of  the  death  of  societies.  Death,  limiting  the  exist- 
ence of  the  individual,  is  an  indispensable  condition  for 
the  progress  of  the  species.  The  law  of  death  for  the  in- 
dividual is  thus  counterbalanced  by  the  absence  of  any 
fixed  limits  for  the  duration  of  the  species.  The  species, 
it  is  true,  may  disappear  from  the  earth,  but  it  cannot 
be  said  to  be  mortal  in  the  same  sense  as  is  the  indi- 
vidual. The  individual  is  foredoomed  to  die,  not  merely 
when  he  finds  himself  in  unfavorable  conditions,  but  even 
when  he  is  best  situated  to  live.  Death  comes  naturally 
with  old  age.  This  is  why  we  meet  with  natural  death 
wherever  we  are  dealing  with  individuals  and  not  with 
species.  These  observations  indicate  clearly  enough  why 
society  regarded  as  a  unity  does  not  really  either  multi- 
ply or  suffer  natural  death. 

Spencer's  theory,  according  to  which  the  absence  of 
natural  death  among  societies  is  only  a  passing  phe- 
nomenon, caused  by  the  insufficient  development  of  in- 
ternational law,  is  a  gross  sophism.  If  the  savage  freely 
attributes  death  or  accidents  to  some  breach  of  religious 
duty,  this  is  naturally  explained  by  the  peculiar  concep- 
tion he  forms  through  his  superstitions  of  the  world. 
The  conception  is  of  a  purely  subjective  order.  Fero- 
cious beasts  have  instincts  still  fiercer  than  those  of 


284  THEORY  OF  LAW 

primitive  man,  but  cases  of  natural  death  are  not  un- 
known among  them,  as  is  well  ascertained.  Spencer's 
explanation  of  the  phenomena  of  natural  death  is  insuffi- 
cient, and  it  is  impossible  to  conclude  with  him  that  its 
absence  in  social  life  is  unimportant.  On  the  contrary, 
if  we  take  into  consideration  the  connection  just  indi- 
cated between  the  individual's  death  and  the  life  of  the 
species,  this  trait  as  distinguishing  society  from  the  or- 
ganism finds  an  altogether  natural  explanation. 

We  cannot  fully  assent,  either,  to  Spencer's  attempt  to 
minimize  the  other  differences  between  the  organism  and 
society,  growing  out  of  the  absence  which  he  admits  of  a 
material  union  between  the  latter 's  members,  the  dis- 
continuity in  every  society  of  the  whole  and  of  its  several 
parts.  Spencer  seeks  to  show  that  this  lack  of  continu- 
ity, this  absence  of  material  union  between  the  parts  is 
only  apparent.  In  this  effort  he  brings  in  the  territory, 
the  goods,  the  domestic  animals  as  benumbed  members 
of  the  social  organism  less  alive  than  the  other  parts,  like 
an  animal's  bones,  hair  or  skin.  But  these  latter  are  in- 
tegral parts  of  the  organism  resulting  from  its  own  nat- 
ural activity  and  essentially  different  from  foreign  bodies 
attached  to  it. 

Such  a  theory  does  not  at  all  explain  the  existence,  for 
instance,  of  the  church,  whose  establishments  are  often 
wholly  separated  into  the  remote  parts  of  distant  coun- 
tries. Groupings  having  a  territorial  basis,  moreover, 
may  see  their  territorial  continuity  broken  by  an  inter- 
vening foreign  province  or  may  consist  of  colonies  wholly 
separate  from  the  parent  country. 

As  regards  the  relations  of  the  whole  to  its  parts  in  the 
society  and  the  organism,  Spencer  asks  only  the  ques- 
tion, "Which  is  the  end  and  which  the  means  used  to 
reach  it?"  This  question  seems  wholly  idle.  Every  con- 
scious being  regards  itself  as  the  end,  and  all  else  as 
only  a  means.  The  man  regards  as  a  means  both  cells 


SOCIAL  CONDITIONS  285 

of  which  he  is  made  up  and  the  society  into  which  he 
enters  as  an  integral  element.  Such  a  conception  of 
purpose  is  entirely  subjective,  and  if  the  cells  could  com- 
prehend and  think,  they  would  infallibly  consider 
themselves  as  the  end,  and  the  rest  as  only  a  means 
to  their  existence.  A  scientific  conclusion  resting 
upon  such  an  entirely  subjective  premise  cannot  be 
admitted. 

If  we  set  aside  all  teleological  notions,  we  can  adopt 
a  quite  different  method  for  proposing  and  determining 
the  question  as  to  the  relations  of  parts  to  the  whole  in 
society.  Whether  we  consider  the  man  as  the  end  and 
society  as  the  means,  or  inversely,  we  cannot  fail  to  ob- 
serve the  essential  difference  between  man's  relation 
to  society  and  the  cell's  relation  to  its  organism.  Man 
in  society  enjoys  a  far  greater  independence  than  does 
the  cell  in  the  organism.  The  cell  is  always  simply 
and  exclusively  an  attribute  of  a  single  organism.  It 
has  no  power  to  participate  at  the  same  time  in  the  life 
of  several  organisms.  It  cannot  temporarily  quit  its  or- 
ganism for  another.  In  social  life,  on  the  contrary, 
participation  by  foreigners  in  local  social  functions  is  a 
very  frequent  occurrence.  It  is  not  only  possible,  but 
becomes  increasingly  frequent  and  necessary  with  social 
evolution. 

Man  can  be  simultaneously  a  member  of  several  so- 
cieties whose  characteristics  and  functions  differ.  Sub- 
jects of  the  Russian  state,  for  example,  may  be  of  Ger- 
manic nationality  and  belong  at  the  same  time  to  the 
Catholic  Church.  In  such  a  situation  it  is  not  the  weak, 
isolated  individual  who  is  set  before  the  political  society's 
influence,  but,  on  the  contrary,  the  individual  supported 
and  strengthened  by  other  societies. 

A  still  more  important  point  is  that  each  individual  is 
not  the  product  exclusively  of  one  given  grouping,  but 
of  the  united  influence  of  several  social  combinations. 


286  THEORY  OP  LAW 

As  the  individuals  belong  at  the  same  time  to  sev- 
eral of  these  groupings,  there  arises  a  diversity,  an 
extreme  multiplicity  among  the  populations  of  mod- 
ern states;  there  even  sometimes  results  discord,  and 
the  struggle  of  the  individual  against  his  social  en- 
vironment. 


SOCIAL  CONDITIONS  287 


Section  37.     Of  ike  Nature  of  Society 

Having  thus  followed  step  by  step  Spencer's  parallel 
between  the  organism  and  society,  we  have  found  at  the 
side  of  indubitable  resemblances,  some  essential  differ- 
ences at  the  points  indicated.  Let  us  try  to  group  these 
differences  and  see  the  connection  between  them. 

In  studying  sciences  relating  to  the  inorganic  Vorld,  "we 
see  that  all  conceptions  are  invariably  based  upon 
existing  facts;  all  phenomena  are  determined  by  present 
conditions. 

To  study  the  chemical  properties  of  any  substance  or 
the  laws  of  its  motion  there  is  no  need  of  going  back  to 
the  origin  of  the  substance  or  of  its  motion,  and  of  know- 
ing in  what  way  the  body  was  formed  or  by  what  shock 
its  motion  imparted.  We  can  study  the  motion  in  ab- 
solute ignorance  of  its  source.  In  the  inorganic  world, 
then,  everything  can  be  determined  by  the  study  of 
actual  facts. 

In  mechanics,  in  physics,  in  chemistry,  the  doctrine  of 
development,  the  history,  the  embryology,  if  we  may  so 
call  it,  of  the  science,  does  not  exist.  A  mechanical  ag- 
gregate, a  pile  of  stones,  for  example,  can  exist  indefi- 
nitely if  its  equilibrium  is  not  disturbed.  Whenever  it  is, 
the  aggregate  will  fall  in  pieces,  for  it  cannot  adapt  itself 
to  varying  external  conditions. 

The  existence  of  a  mechanical  aggregate  is  conditioned 
by  the  present  situation.  The  past  has  given  it  no 
energy  to  provide  for  a  new  one.  For  this  reason  it 
can  experience  no  natural  death.  A  pile  of  stones  may 
last  eternally,  or  fall  quickly  to  pieces  if  external  condi- 
tions alter.  The  past,  in  a  word,  has  no  influence  over 
its  fate. 

If  we  look  now  at  the  phenomena  of  organic  life,  we 


288  THEORY  OF  LAW 

observe  something  entirely  different;  the  study  of  iso- 
lated phenomena  without  examining  their  successive  de- 
velopment is  impossible.  If  we  take  out  of  the  sciences 
of  organic  life  the  study  of  the  genesis  of  phenomena, 
there  will  remain  only  the  nomenclature.  To  study  liv- 
ing beings  it  is  necessary  to  learn  the  history  of  their 
formation;  it  is  necessary  to  indicate  their  place  in  the 
scale  of  all  living  beings  and  to  show  even  its  intra-uter- 
ine  history.  The  study  of  the  individual's  origin  is  in 
the  natural  sciences  an  indispensable  thing.  A  zoologist 
who  should  make  no  embryological  investigations  could 
not  explain  in  a  truly  scientific  manner  any  phenomenon 
of  organic  life. 

So,  too,  the  study  of  the  conditions  of  the  existence  of 
mechanical  aggregates  and  that  of  organic  bodies  pre- 
sents some  important  differences  between  the  two  groups 
of  phenomena.  A  mass  of  stones  will  fall  apart  at 
any  time,  as  has  been  said,  if  its  conditions  of  equilib- 
rium are  disturbed;  while  every  animal  possesses  vital- 
ity from  its  birth  and  thereby  can  adapt  itself  to  a 
certain  amount  of  variation  in  external  conditions.  The 
being  offers  a  certain  amount  of  resistance  to  unfavor- 
able conditions.  Spencer  defines  life  as  the  capacity  to 
adapt  oneself  to  external  conditions.  This  means  that 
every  animal  can  adapt  itself  to  conditions  because  its 
existence  is  to  that  extent  determined  by  its  past,  by 
the  vital  force  received  at  birth.  The  organism  can 
also  in  some  degree  change  and  adapt  external  condi- 
tions. So,  the  inorganic  world  is  determined  by  present 
conditions,  the  organic  one  by  both  the  present  and  the 
past. 

The  laws  of  heredity  show  that  upon  the  past  of  all 
mankind  and  perhaps  upon  that  of  the  whole  organic 
world,  depends  to  a  certain  degree  the  character  and  life 
of  each  individual.  Each  foetus  receives  a  certain  degree 
of  energy  which  is  employed  afterwards  for  the  adapta- 


SOCIAL  CONDITIONS  289 

tion  of  the  individual  to  the  external  conditions  of  his 
life.  If  those  conditions  are  unfavorable,  the  expenditure 
of  energy  is  greater.  If  they  are  favorable,  it  is  expended 
more  slowly;  but,  however  favorable  the  conditions,  there 
will  come  a  time  when  it  will  be  all  gone.  Individuals  do 
not  normally  perish  by  chance,  but  because  they  have 
used  up  their  stock  of  energy  in  the  struggle  with  the  ex- 
ternal conditions  of  life. 

If  now  we  pass  from  the  study  of  organic  and  inor- 
ganic phenomena  to  that  of  social  ones,  we  should  ask 
first  if  these  latter  are  determined  by  the  present  or  the 
past,  or  by  both,  or  by  some  new  element.  Doubtless, 
the  general  laws  which  govern  the  organic  and  the  inor- 
ganic world  apply  equally  to  the  phenomena  of  social  life. 
The  present  plays  a  great  role  in  all  societies.  Such,  for 
example,  is  the  situation  in  which  a  state  finds  itself  by 
reason  of  international  conditions.  To  take,  for  example, 
Belgium  and  Switzerland,  their  existence  is  before  all  else 
the  result  of  the  present  conditions  of  international  life 
and  of  their  geographic  situation,  which  is  such  that  no 
neighboring  state  can  afford  to  assent  to  the  taking  of 
any  part  of  their  territory  by  any  other  state. 

By  the  side  always  of  the  present,  the  past  meanwhile 
has  always  in  social  affairs  an  important  part.  Each  gen- 
eration has  a  certain  influence  upon  the  development  of 
future  generations'  social  life;  and,  moreover,  our  inheri- 
tance from  our  fathers  is  of  overwhelming  importance. 

The  life  and  organization  of  a  society  yield  the  more  to 
the  influence  of  the  past,  the  richer  that  past  is  in  historic 
events,  and  thus  a  society  actually  weak  may  neverthe- 
less subsist  a  long  while  merely  from  the  prestige  of  a 
glorious  past.  Take,  for  example,  the  Roman  empire. 
It  continued  a  long  time  after  contemporary  circum- 
stances had  wrought  its  decadence.  Its  past  was  so  rich 
that  the  barbarians,  themselves,  who  had  overthrown  its 
political  power,  bowed  before  its  civilization. 


290  THEORY  OF  LAW 

By  the  side  of  the  historic  life  which  thus  helps  deter- 
mine social  life,  and  with  its  present  conditions  favorable 
or  otherwise,  there  is,  besides,  a  third  very  important 
element,  which  constitutes  the  characteristic  trait  of  so- 
cial phenomena;  it  is  that  man  endowed  with  memory 
and  consciousness  passes  easily  in  thought  from  the  past 
into  the  future.  Memory  and  desire  are  two  sides  of  the 
same  phenomenon.  What  man  by  his  experience 
has  gathered  and  accumulated  in  the  past,  he  trans- 
fers under  one  form  or  another  into  the  future.  He 
is  capable,  in  a  word,  of  forming  a  conception  of  the 
future,  an  ideal. 

The  existence  of  an  ideal,  or  on  the  other  hand,  its  ab- 
sence, are  the  most  important  points  in  the  social  devel- 
opment. We  have  seen  that  the  animal  after  expending 
all  its  energy  dies;  society,  on  the  other  hand,  does  not 
perish,  however  unfavorable  its  conditions,  provided  its 
ideal  is  strongly  enough  traced.  There  may  come,  it 
is  true,  circumstances  such  that  the  creation  and  main- 
tenance of  any  such  ideal  becomes  impossible  and  the 
death  of  the  society  results  inevitably,  but  this  is  a  very 
rare  case. 

Society,  therefore,  is  controlled  by  these  three  distinct 
elements: 

ist.     The  present  conditions  under  which  it  acts. 

2d.     Its  past. 

3d.     The  ideal  drawn  from  that  past. 

The  effect  upon  social  phenomena  not  merely  of  past 
and  present  facts,  but  also  of  conceptions  as  to  the  future 
on  the  part  of  the  society's  numbers,  has  produced  neces- 
sarily an  extreme  complexity  and  independence  in  social 
phenomena.  This  complexity  and  independence  has  still 
another  explanation. 

According  to  the  true  saying  of  Claude  Bernard,  the 
complexity  of  organic  life  depends  also  upon  the  fact 
that  besides  its  external  environment  each  organism  has, 


SOCIAL  CONDITIONS  291 

so  to  say,  an  internal  environment  consisting  in  its  own 
liquid  element.  Thanks  to  this  interior  environment, 
the  organism  can  keep  a  high  temperature  and  a 
moist  condition  amid  cold  and  dry  surroundings.  To 
this  is  due  the  relative  independence  of  the  organism 
from  its  surroundings  at  any  particular  moment  of  its 
life.  By  this  means  is  established  its  relation  to  the 
past;  since  this  internal  environment  is  a  product  of  past 
activity. 

If  we  apply  this  comparison  to  what  takes  place  in 
the  social  order,  we  may  say  that  society  has  a  triple 
environment:  first,  an  external  one,  formed  at  any  given 
moment  by  its  existing  physical  and  geographic  condi- 
tions and  those  of  the  other  societies  then  existing;  sec- 
ond, an  interior  environment,  composed  of  the  customs 
and  institutions  bequeathed  by  the  past;  and,  finally,  a 
special  ideal  intellectual  environment  made  up  of  con- 
ceptions born  in  the  heads  of  the  individual  members  of 
the  society  which  form  a  perspective  of  the  future. 

This  triple  connection  of  social  phenomena  with  pres- 
ent, past  and  future  time  or,  in  other  words,  with  the 
external,  physical,  and  the  interior  and  intellectual  en- 
vironment, causes  all  the  differences  we  are  compelled  to 
recognize  between  society  and  the  organism. 

In  affirming  that  society  is  affected  by  a  special 
ideal  and  intellectual  environment,  we  recognize  that 
the  bond  connecting  the  different  members  of  society 
has  a  moral,  psychical  character,  and  explain  thus  the 
absence  of  any  physical  connection  in  human  so- 
cieties. Psychical  phenomena,  in  fact,  are  distinguished 
before  all  from  material  ones  in  that  they  do  not  rest 
upon  any  local  base;  the  spiritual  connection  between 
the  members  of  the  same  society  does  not  require  phys- 
ical contact. 

In  the  same  way,  we  explain  the  possibility  of  a  man's 
belonging  to  different  societies  at  the  same  time,  and 
of  his  belonging  to  different  organs  of  the  same  society 


292  THEORY  OF  LAW 

at  the  same  time.  Ideas,  differing  in  that  respect  from 
matter,  are  not  impenetrable  to  each  other.  The  possi- 
bility of  augmenting  a  society  by  annexation  is  explained 
by  the  same  means.  Moreover,  the  dependence  of  social 
phenomena  upon  ideas  of  the  future  explains  why  so- 
cieties know  no  natural  death. 

In  organic  life  vital  energy  necessarily  exhausts  itself 
with  time,  and  the  more  rapidly  the  more  active  the  life. 
In  society,  on  the  contrary,  although  there  is  an  equal 
expenditure  of  energy,  there  is  no  exhaustion  because  the 
expenditure  is  replaced  by  new  force  drawn  in  by  the 
ideal  which  guides  and  inspires  the  whole  society.  An- 
cient customs  disappear,  old  institutions  become  useless, 
but  this  does  not  bring  about  the  death  of  the  society. 

If  this  society  still  keeps  its  capacity  for  psychical  crea- 
tion, if  it  continues  able  to  fashion  a  new  ideal,  the  old 
and  feeble  customs  will  be  replaced  by  new  legislation, 
new  beliefs  will  arise  and  society  draw  from  them  a  new 
source  of  life.  So  there  is  no  limit  to  the  social  life.  So- 
cieties doubtless  can  and  have  perished,  but  differing  in 
this  respect  from  mechanical  aggregates,  they  know  no 
natural  death,  and  this  same  absence  of  death  as  we  have 
seen,  explains  the  absence  of  reproduction  and  multipli- 
cation, the  one  depending  upon  the  other. 

The  organic  notion  of  society,  since  it  does  not  serve  to 
explain  all  social  phenomena,  must  give  place  to  the  psy- 
chical conception  of  it,  which  recognizes  the  ideal  that 
guides  all  human  society  as  a  factor  distinct  from  the 
social  aggregates,  and  which  places  the  phenomena  of 
social  life  side  by  side  with  these  of  the  organic  and  inor- 
ganic world  as  an  independent  group,  and  one  wholly 
apart  from  the  phenomena  of  the  world.1 


1  In  the  second  edition  of  his  book,  Schaffle  reaches  the  same  conclusion.  Die 
menschliche  Gesellschaft  ist  eine  rein  geistliche  (psychiche)  bewirkte  durch  ideen- 
zeichen  und  durch  Kunsthandlungen  vollzogene  untheilbare  Lebensgemeinschaft 
organischer  Individuen.  "Bau  und  Leben,"  I,  p.  1. 


SOCIAL  CONDITIONS  293 

In  setting  aside  the  organic  theory,  however,  we  can- 
not fail  to  recognize  the  services  which  it  has  rendered 
to  sociology.  If  the  mechanical  conception  of  society  has 
had  a  great  historical  role,  we  must  recognize  the  same 
fact  as  to  the  organic  conception. 

The  mechanical  theory  denied  history  and  its  influ- 
ence over  social  phenomena.  The  organic  theory,  on 
the  contrary,  has  always  recognized  the  existence  of  a 
connection  among  social  phenomena  and  affirmed  the 
influence  of  the  past  in  producing  the  facts  of  the  pres- 
ent. The  organic  theory,  too,  has  given  a  new  impulse  to 
the  scientific  explanation  of  social  phenomena.  But  that 
theory  stops  half  way.  How  strange  it  appears  on  Spen- 
cer's part,  the  representative  of  evolutionism,  that  he 
found  it  necessary  to  support  himself  upon  the  facts  of 
the  past,  but  did  not  at  all  observe,  or  did  not  regard 
the  future,  and  never  believed  in  the  important  part  in 
the  development  of  society  played  by  this  conception  of 
the  future. 

The  evolutionist  theory  ought  not  to  stop  with  the 
study  of  actual  facts,  unless  man's  present  conception 
of  the  future  be  included  among  them.  It  ought  not  to 
draw  its  conditions  of  individual  and  social  development 
from  the  present;  it  ought  to  establish  the  existence  of  a 
continuous  progress.  Therefore,  Spencer  ought  not  to 
have  limited  himself  to  the  study  of  the  past.  He  ought 
to  have  shown  us  how  society  is  controlled  in  its  develop- 
ment by  the  conception  of  the  future. 

We  ourselves  insist  upon  numerous  resemblances  be- 
tween the  organism  and  society,  but  we  believe  that 
society  is  an  organism  presenting  important  peculiarities 
arising  out  of  its  power  of  forming  an  ideal  of  the  future. 
Our  explanation  answers  completely  the  most  varied 
hypotheses. 

A  hypothesis,  in  truth,  to  be  established,  requires  that 
the  causes  to  which  one  or  another  group  of  phenomena 


294  THEORY  OF  LAW 

is  traced  be  true  causes;  that  is  to  say,  that  they  be  truly 
a  force  producing  the  phenomena  of  the  group,  that  their 
existence  be  demonstrated  and  verified. 

The  verification  of  a  hypothesis  consists  in  the  fact 
that  the  results  drawn  from  it  by  way  of  deduction  must 
conform  to  actual  phenomena.  So,  if  the  capacity  to 
form  an  ideal  is  a  characteristic  sign  of  all  social  phe- 
nomena, we  must  conclude  that  this  capacity  is  in  direct 
proportion  with  the  development  of  social  life.  The  real- 
ity is  there  to  prove  for  us  how  far  such  an  assertion  is 
well  founded. 

If  we  compare  in  fact  a  civilized  society,  one  in  which 
the  association  is  for  each  of  its  members  the  highest  of 
needs,  with  an  embryo  people  living  still  in  the  savage 
state,  we  observe  a  very  great  difference,  and  convince 
ourselves  of  the  comparative  ease  with  which  the  savage 
gives  up  all  such  connection.  The  intelligence  of  the  sav- 
age peoples  is,  too,  far  inferior  to  that  of  the  civilized. 
The  weaker  social  bonds  are  among  people,  the  weaker 
their  intellectual  development  and  the  greater  their  care- 
lessness of  the  future. 

The  savage  man,  as  has  been  often  enough  shown,  lives 
wholly  for  the  present  moment  without  concern  as  to  the 
future;  he  accumulates  neither  goods  nor  knowledge  by 
way  of  providing  for  it. 

A  second  conclusion  to  draw  from  the  theory  which 
we  indicate  is  that  if  the  notion  of  the  future,  the  ca- 
pacity to  create  an  ideal,  is  proportional  to  the  de- 
velopment of  social  life,  the  conditions  necessary  for  the 
development  of  the  psychic  faculty,  creatress  of  the 
ideal,  ought  at  the  same  time  to  serve  for  the  develop- 
ment of  social  life.  This  is  what  in  fact  happens.  The 
conditions  for  the  development  of  the  psychic  life  of  the 
individual,  and  those  of  the  development  of  social  life, 
are  identical. 

If  in  the  organism  the  independence  of  the  distinct  cells 


SOCIAL  CONDITIONS  295 

is  in  inverse  proportion  to  the  development  of  the  organ- 
ism as  an  entirety,  we  cannot  establish  on  the  other 
hand  in  the  social  life  that  the  independence  of  the 
members  of  the  same  society  diminishes  as  the  develop- 
ment of  the  society  augments.  Quite  the  contrary,  in- 
dividual independence  is  one  of  the  prime  conditions  of 
social  development.  Where  the  development  of  indi- 
vidual thought  is  stifled,  the  growth  of  the  social  ideal  is 
impossible;  society  retrogrades,  finds  its  development  para- 
lyzed, its  internal  as  well  as  external  relations  less  active. 
If  such  a  state  persists,  the  very  existence  of  society  may 
be  put  in  peril. 

If  the  conditions  of  psychic  and  those  of  social  devel- 
opment are  identical,  we  ought  to  understand  why  a 
human  group  in  which  the  conception  of  the  future  plays 
an  important  role  is  very  strongly  united  and  capable  of 
maintaining  itself  against  unfavorable  external  condi- 
tions. 

The  whole  national  life  of  the  Jews,  for  example,  could 
be  controlled  by  a  conception  of  the  future,  by  the  expec- 
tation of  the  Messiah,  despite  all  the  unfavorable  condi- 
tions of  their  existence.  Meanwhile,  the  national  bond 
which  unites  this  scattered  people  is  such  as  the  other 
nations  may  well  envy. 

If  the  social  relations  are  determined  by  the  degree  of 
the  development  of  the  ideal  formed  by  individuals,  it 
must  be  admitted  that  in  actual  social  life  the  conditions 
of  existence  can  be  modified  according  to  the  ideal  traced 
by  the  members  of  the  same  society,  and  false  notions 
may  have  a  great  influence  upon  the  social  development. 
For  example,  notwithstanding  the  unquestionable  error 
of  its  dogmas,  the  era  when  the  Mahometan  world  was 
most  prosperous  was  precisely  the  time  when  its  errone- 
ous ideas  were  most  widespread. 

No  possible  limit  can  be  assigned  to  the  social  ideal, 
and  therefore  no  possible  limit  can  be  assigned  to  social 


296  THEORY  OP  LAW 

growth  and  there  is  no  model  type  which  can  be  set  up 
beyond  which  it  is  impossible  to  go. 

Such  limits,  such  model  types,  on  the  contrary,  exist  in 
the  organic  world.  Living  beings  do  not  surpass  them, 
and  having  reached  them  exist  for  no  further  end  except 
multiplication  and  the  maintenance  of  the  species.  In 
society,  too,  we  observe  one  entirely  different  phenom- 
enon. A  change  of  ideas  can  bring  about  a  complete 
change  in  social  life. 

The  ideal  of  themselves  which  men  may  form  is  so  im- 
mense that  it  may  embrace  all  the  groupings  formed  by 
similarity  of  occupation,  by  habitation,  nationality,  etc. 
So  we  must  reject  for  society  that  doctrine  of  the  histor- 
ical school  which  admits  for  society  as  for  the  organism  a 
type  determined  a  priori  from  which  insignificant  devia- 
tions are  scarcely  possible. 

According  to  this  doctrine,  there  exists  in  each  people 
a  quite  settled  natural  genius  and  some  peculiarities  and 
functions  equally  settled  and  not  subject  to  alteration  in 
the  course  of  historic  evolution.  This  doctrine  appeared 
in  the  political  field  as  a  protest  against  the  ten- 
dencies towards  revolution  at  the  end  of  the  XVIII 
century,  and  against  the  attempts  made  to  bring 
into  our  country  (Russia)  the  political  institutions  of 
England. 

According  to  the  historical  school  the  political  organi- 
zation of  England  is  good  for  England  alone,  for  it  corre- 
sponds to  a  national  genius  very  peculiar.  France, 
Germany,  and  the  other  countries  ought,  on  the  con- 
trary, to  develop  themselves  by  other  means  more  con- 
formed to  their  national  genius.  Just  as  a  bird  cannot 
become  a  mammifer,  and  reciprocally,  so  no  state  can 
change  its  institutions,  its  organization  which  is  con- 
formed to  the  national  spirit.  This  doctrine  of  the 
historical  school  is  false,  since  we  have  already  seen 
that  a  change  produced  in  the  social  ideal  may 


SOCIAL  CONDITIONS  297 

bring  about  a  change  in  the  whole  social  develop- 
ment. 

The  influence  of  one  people  upon  the  life  of  another  is 
a  proof  of  this.  The  ideal  is  a  force  supporting  the  social 
life  and  this  ideal  may  be  the  result  not  merely  of  our 
own  special  experience,  but  also  of  the  experience  of 
neighboring  peoples. 

By  the  study  of  another  people's  organization,  of  its 
political  development,  the  members  of  a  political  society 
can  form  a  political  ideal  like  to  that  of  such  people.  In 
this  way  the  relations  between  peoples  may  bring  in  a 
new  element  which  may  determine  social  relations. 


298  THEORY    OF  LAW 


Section  38.    Man's  Psychical  Nature 

TROITZKY.  Contemporary  German  Psychology,  1867. 
RIBOT.  La  psychologic  anglaise  contemporaine,  1875. 
SPENCER,  H.  Principles  of  Psychology,  1876. 

If  we  explain  the  peculiarities  of  social  life  by  the  psy- 
chical character  of  the  bond  which  combines  men  into 
society,  the  understanding  of  man's  psychical  nature  and 
of  the  conditions  of  his  moral  development  becomes  for 
us  of  the  highest  importance. 

We  cannot,  of  course,  enter  here  into  a  detailed  analy- 
sis of  psychological  theories.  Such  a  study  would  carry 
us  too  far.  It  is  necessary,  in  order  to  explain  the  nature 
of  society  and  the  connection  between  the  individual  and 
society,  to  outline  some  ideas  derived  from  contempo- 
rary psychology. 

Psychology,  up  to  very  recent  times,  was  divided  be- 
tween two  extreme  tendencies,  both  going  wrong  through 
their  exclusiveness, — intuitionism  and  perceptualism.  The 
one  admits  the  existence  in  us  of  ideas  born  with  us. 
For  those  holding  to  this  side,  the  individual  is  born 
with  a  lot  of  ready-made  ideas  antedating  all  personal 
experience.  These  ideas  were  held  to  be  the  same  in  all 
individuals. 

The  others,  on  the  contrary,  considered  man  as  a  being 
at  birth  absolutely  destitute  of  any  semblance  of  an 
idea,  a  mere  tabula  rasa  which  the  experience  of  life  was 
to  garnish  by  filling  the  void  with  a  more  or  less  rich 
mass  of  contents. 

According  to  this  second  theory  each  individual  is  a 
being  wholly  different  from  all  others.  He  owes  every- 
thing to  his  personal  experience,  and  all  that  he  is  comes 
to  him  from  without.  From  this  point  of  view  the  man, 
consequently,  depends  upon  external  influences;  incap- 


SOCIAL  CONDITIONS  299 

able  of  autonomous  activity,   he  was  a  skillfully  con- 
structed automaton. 

In  spite  of  the  radical  differences  and  the  different 
starting  point  of  the  two  theories  they  have  common 
defects.  First  of  all,  both  are  equally  remote  from  the 
whole  idea  of  psychic  evolution  and  so  are  both  equally 
incapable  of  furnishing  an  explanation  of  the  relative 
independence  of  the  individual  and  of  the  principle  of 
his  relatively  autonomous  activity. 

The  idea  of  psychical  development  in  the  individual 
is  not  very  old.  For  a  long  time  there  has  been  recog- 
nized the  transmission  from  generation  to  generation  of 
a  certain  amount  of  knowledge,  fruit  of  the  preceding 
generation's  experience.  This  was  as  far  as  it  went. 
Only  science  was  regarded  as  transmissible.  The  senti- 
ments and  the  will  were  not.  In  any  case  the  mind 
was  deemed  unchangeable,  and  as  identical  in  all  classes 
of  humanity.  To  the  partisans  of  intuitionism  the  man 
at  all  stages  of  his  life  was  the  same.  There  was  no 
way  of  modifying  his  fund  of  innate  ideas. 

Under  the  opposite  theory,  also,  the  man  had  in  him 
something  unchangeable  and  identical  in  all  individuals, 
the  tabula  rasa.  The  psychic  development  was  limited, 
then,  to  that  of  the  individual.  One  generation  had  no 
influence  upon  another. 

This  negation  of  all  psychic  transmission  from  one 
generation  to  another  prevents  either  theory  from  fur- 
nishing any  explanation  of  the  relative  independence 
of  the  milieu  in  which  he  lives  on  the  part  of  each  indi- 
vidual. For  the  sensationist,  the  man  was  a  machine 
reacting  in  an  automatic  way  against  external  influences. 
If  you  should  take  away  all  these  influences  you  would 
deprive  him  of  his  principle  of  action.  Of  himself,  he 
has  no  active  capacity. 

The  partisans  of  the  intuitive  theory  recognize  clearly 
enough  in  man  a  certain  activity  of  his  own,  but  they 


300  THEORY  OF  LAW 

explain  this  activity  only  by  isolating  the  man  from  the 
ensemble  of  connected  phenomena  united  together  by  a 
natural  bond,  and  by  attributing  to  him  a  free  will, 
entirely  independent  of  all  determinate  law. 

Modern  psychology,  which  has  especially  developed 
itself  in  England,  rejects  alike  both  theories  as  we  have 
set  them  forth.  It  does  not  admit  the  existence  of 
innate  ideas,  at  least  not  in  the  absolute  sense  in  which 
the  intuitionists  assert  them.  Neither  does  it  believe 
like  the  sensationists  that  our  whole  psychic  life  results 
only  from  our  personal  experience  and  is  the  product  of 
external  facts. 

Modern  psychology  holds  to  the  mean  between  these 
two  conceptions.  It  recognizes  that  the  whole  psychic 
life  can  be  explained  by  the  entire  experience,  external 
and  internal,  by  the  individual's  personal  experience, 
and  by  that  of  all  humanity, — the  collective  experience. 
The  moral  life  is  no  longer  recognized  as  simply  the 
result  of  external  influences,  of  the  individual's  environ- 
ment. What  the  man  gets  from  the  external  world,  is 
completed  and  modified  in  him  by  the  concepts  of  the 
inward  experience.  So,  too,  our  ideas  which  are  by 
connection  with  the  entire  development  of  mankind 
derived  from  universal  experience,  are  as  regards  par- 
ticular individuals  innate  ideas,  bequeathed  by  the 
preceding  generation.  Such  a  theory  has  not  the  faults 
indicated  in  the  preceding  theories. 

Under  this  theory  man  is  no  longer  an  automaton 
guided  solely  by  external  phenomena.  The  movements 
of  his  soul  may  be  due  to  conceptions  furnished  to  him 
by  his  own  inner  experience.  Physiological  or  even 
pathological  facts,  special  dispositions  of  our  own  or- 
ganisms, may  produce  in  us,  independently  of  any  ex- 
ternal experience,  some  special  activity  of  the  mind. 
We  must  add  to  these  those  actions  produced  by  sen- 
timents, tendencies  and  tastes  bequeathed  to  us  by  our 


SOCIAL  CONDITIONS  301 

ancestors,  and  we  can  easily  explain  the  relative  inde- 
pendence of  the  individual  as  regards  his  external  envi- 
ronment. There  will  be  no  need  to  interpose  the  opposi- 
tion between  human  actions  and  physical  phenomena, 
no  need  to  appeal  to  any  special  freedom  of  the  human 
will. 

Modern  psychological  theory  rejects,  also,  the  ancient 
opinion  which  denied  the  psychic  influence  of  one  gen- 
eration over  another.  If  our  ideas  and  sentiments  are 
a  product  of  the  entire  secular  experience  of  humanity, 
individuals  and  generations  ought  to  be  connected  not 
only  in  space  but  also  in  time. 

The  psychic  life  of  each  generation  is  only  a  link  con- 
necting former  generations  with  those  to  come.  The 
unbroken  bond  of  psychic  development  through  suc- 
ceeding generations  has  its  source  in  psychic  heredity, 
and  this  theory  in  fact  gives  to  the  laws  of  heredity  an 
important  place.  They  have  great  importance  in  all 
social  sciences  because  they  establish  a  connection  be- 
tween each  individual  and  all  mankind,  past  and 
future,  or  at  least  connection  with  some  particular 
nation. 

All  aptitudes  and  tendencies,  physical  and  psychical, 
are,  thanks  to  the  laws  of  heredity,  not  a  product  of 
individual  life  but  of  man's  collective  life.  The  mod- 
ern psychological  theory  recognizes,  then,  a  connected 
transmissibility  in  the  psychic  development  of  genera- 
tions and  sees  in  the  individual  in  a  pre-eminent  de- 
gree a  product  of  historic  and  social  life.  The  psychical 
character  of  this  social  bond  which  combines  men  into 
communities  does  not  prevent  the  hereditary  social  in- 
fluence from  having  a  regular  and  continuous  advance. 
Human  ideas,  although  they  are  a  distinct  factor  in 
social  life,  are  themselves  the  result  of  a  regular  suc- 
cessive development;  they  develop  along  with  the  social 
life  itself. 


302  THEORY  OP  LAW 

An  objection  has  been  made  to  this  last  idea, — that 
our  wills  are  not  subject  to  any  definite  law,  not  even 
that  of  causation.  This  opinion  has  its  importance.  It 
has  played  so  great  a  part  in  the  history  of  philosophic 
theories  and  has  exercised  so  great  an  influence  that  an 
attentive  examination  of  the  doctrine  of  free  will  is 
necessary. 


SOCIAL  CONDITIONS  303 


Section  39.     The  Freedom  of  the  Will 

SCHOPENHAUER.  Ueber  die  Freiheit  des  menschlichen  Wil- 
lens  (in  Die  Beide  Grund-Probleme  der  Ethik).  2d  ed., 
1860. 

FOUILLEE.     La  liberte  et  de  determinisme. 

BINDING.  Die  Normen  und  ihre  TJebertretung.  Vol.  II,  Sec. 
32. 

HERTZ.     Das  Unrecht,  1880.     Sec.  II. 

It  is  necessary  in  order  to  get  an  accurate  solution,  to 
state  the  problem  clearly.  The  freedom  of  the  will  is 
set  in  opposition  to  the  idea  of  conformity  to  law.  But 
what  do  we  mean  by  "law"?  We  have  examined  al- 
ready what  is  meant  in  science  by  the  word.  Law, 
there,  is  not  some  one's  order  which  is  the  producing 
cause  of  certain  phenomena;  it  is  merely  that  uniformity 
of  phenomena  which  men  agree  in  observing. 

In  fixing  this  definition  of  scientific  law  we  avoid  all 
confusion.  If  we  recognize  in  law  a  force  causing  phe- 
nomena, and  the  will  as  a  force  acting  by  the  side  of 
law,  we  shall  involve  ourselves  in  the  question  as  to 
whether  or  not  the  will  can  also  be  the  cause  of  phe- 
nomena. 

The  will  can  be  the  cause  of  phenomena  only  in  a 
case  when  the  phenomena  are  not  subject  to  any  given 
law,  if  we  assume  that  the  law  is  the  cause  of  phenomena. 
With  such  a  notion  of  law,  to  say  the  will  can  be  the 
cause  of  phenomena  is  to  say  that  it  is  free,  because  it 
is  to  say  that  as  vera  causa  it  is  not  controlled  by  others. 
But  to  accept  such  a  definition  of  law  would  of  course 
be  inconsistent  with  the  definition  of  a  scientific  law 
just  given. 

If  law  is  not  regarded  as  a  cause  of  phenomena,  but 
merely  as  a  formula  for  an  observed  uniformity  in  their 
recurrence,  to  see  in  the  will  the  determining  cause  of 


304  THEORY  OF  LAW 

an  act,  is  not,  necessarily,  to  admit  a  separation  between 
the  spheres  of  application  of  law  and  those  of  the  will. 
If  we  admit  that  law,  scientifically,  is  only  a  formula 
expressing  the  uniform  march  of  phenomena,  the  ques- 
tion as  to  the  freedom  of  the  will  assumes  a  very  different 
form. 

Experience,  drawn  from  external  facts,  does  not  show 
us  any  which  can  be  considered  as  absolute  principles 
of  phenomena  which  are  to  follow.  External  facts  show 
us  a  continual  succession  of  causes  and  effects  and  each 
phenomenon,  while  the  cause  of  following  ones,  is  the 
effect  of  those  which  precede.  Absolute  principles  which 
should  make  certain  phenomena  result  from  others 
without  themselves  being  the  cause  of  still  others  in 
the  future  can  have,  then,  no  existence.  Every  ob- 
served phenomenon  must  be  considered,  then,  as  merely 
a  link  in  the  uninterrupted  chain  of  causes  and  effects. 
All  phenomena  are  uniform  in  this  sense,  that  each  is 
a  cause  of  future  phenomena  and  a  result  of  preceding 
ones.  This  property  of  phenomena  is  the  law  or  principle 
of  causality. 

That  this  law  is  an  actual  one  of  all  phenomena  of 
the  external  world  admits  of  no  doubt.  The  question  of 
the  freedom  of  the  will  reduces  itself  to  ascertaining  if 
our  internal  experience,  differing  from  external  experi- 
ence, does  not  give  us  a  different  principle  from  the 
one  just  stated.  Does  our  internal  experience  testify 
of  desires  and  acts  within  us  which  are  themselves  the 
cause  of  phenomena  without  being  at  the  same  time 
themselves  the  effect  of  preceding  ones? 

If  the  acts  of  our  wills  have  no  cause,  are  themselves 
absolute  principles,  creators  of  a  series  of  independent 
phenomena,  then  we  must  say  that  our  wills  are  not 
subject  to  the  law  of  causality,  and  while  themselves  the 
cause  of  phenomena,  they  are  themselves  without  cause; 
that  is,  they  are  free.  If,  on  the  other  hand,  the  acts 


SOCIAL  CONDITIONS  305 

of  our  wills  are  the  result  of  preceding  impressions,  or 
desires,  or  of  character,  then  the  will  is  not  free.  It  is 
subject,  also,  like  external  facts,  to  the  principle  of 
causality. 

There  is  here  no  question  as  to  whether  or  not  the 
will  serves  as  a  cause  of  phenomena,  but  merely  of  know- 
ing whether  or  not  it  has,  itself,  a  cause.  Most  authors 
have  unluckily  mixed  these  two  questions  which  have 
nothing  in  common.  Nobody  even  among  the  warmest 
defenders  of  the  will's  freedom  would  recognize  any  such 
freedom  in  an  idiot,  but  undoubtedly  the  will  of  an  idiot 
can  also  be  the  cause  of  phenomena. 

In  stating  the  question  thus  clearly  we  have  wished 
to  avoid  the  two  most  frequent  errors  on  this  subject, — 
the  recognizing,  first,  that  fatalism  is  equivalent  to  a 
negation  of  the  will's  freedom;  and  second,  that  a  for- 
mula can  be  found  which  will  serve  to  reconcile  freedom 
of  the  will  and  the  principle  of  causality. 

Fatalism  answers  only  the  question  whether  or  not 
the  will  is,  itself,  a  cause  of  phenomena.  It  replies  no, 
without  troubling  itself  to  ascertain  whether  or  not  the 
will  has  itself  a  cause.  Fatalism  admitted  that  every 
phenomenon  is  determined  by  a  supreme  will;  that  fate 
rests  over  all  men;  that  every  event  must  take  place 
logically,  unavoidably  and  independently  of  men's  wills 
or  acts.  However  great  men's  efforts  to  avoid  the  ac- 
complishment of  any  result,  fatal  necessity  none  the  less 
brings  it  about  because  of  predestination.  Death  super- 
venes, if  fate  has  so  ordered,  despite  all  man's  efforts. 
It  even  comes  more  late  only  if  the  hour  has  not  yet 
struck. 

The  whole  fatalistic  doctrine,  consequently,  comes 
back  to  this,  that  neither  external  events  nor  human 
actions  depend  upon  the  will,  and  generally  that  phe- 
nomena take  place  not  by  reason  of  any  interdependence 
between  them,  but  from  some  external  force.  Man  does 


306  THEORY    OF    LAW 

not  control  external  events  and  cannot  modify  them, 
whatever  he  may  do  with  that  in  view. 

This  theory  reorganized,  then,  the  existence  of  some 
force  outside  of  the  uninterrupted  chain  of  phenomena. 
It  denies  the  bond  of  causality  between  those  phe- 
nomena and  introduces  the  idea  of  a  perpetual  miracle. 
This  fatalistic  conception,  however,  denies  not  the  will's 
freedom,  but  merely  the  existence  of  any  law  of  caus- 
ality. The  fatalist's  position  is  sometimes  admitted, 
strange  as  it  may  appear,  by  those  partisans  of  the  uni- 
versal sway  of  the  law  of  causality  who  rely  in  their 
arguments  upon  statistics.  These  last  show  us  that  cer- 
tain spontaneous  human  actions  in  given  social  condi- 
tions are  invariably  renewed  from  year  to  year  always 
in  the  same  identical  way.  The  annual  figures  for  assas- 
sinations, marriages,  suicides,  etc.,  are  repeated  again 
and  again,  often  more  uniformly  than  the  facts  of  birth 
and  death.  This  proves,  say  the  fatalists,  that  men's 
spontaneous  acts  are  subject  to  scientific  law  as  clearly 
as  their  involuntary  ones. 

A  false  notion  of  scientific  law  and  an  erroneous  con- 
ception of  the  question  as  to  the  freedom  of  the  will 
unite  to  produce  this  false  affirmation  that  statistics 
prove  the  existence  of  laws  requiring  annually  a  given 
number  of  crimes,  marriages,  etc.  Statistics  do  not  in 
any  manner  justify  such  deductions. 

If  the  uniformity  in  human  actions  constitutes  the 
law,  that  law  is  not  the  cause  of  the  phenomena.  It 
cannot  be  said  that  there  is  an  annual  fixed  figure  for 
suicides  because  there  is  a  statistical  law  which  says  so. 
If  there  is  such  an  observed  uniformity,  it  is  because 
the  conditions  leading  to  suicide  remain  from  year  to 
year  almost  the  same.  Change  these  conditions,  and 
at  once  a  corresponding  change  occurs  in  the  figures  for 
suicides.  The  figures  do  not  prove  that  any  statistical 
law  is  the  cause  of  suicides.  They  merely  indicate 


SOCIAL  CONDITIONS  307 

uniformity  in  the  causes  on  which  suicides  depend,  and 
that  they  remain  uniform  from  year  to  year.  If  the 
suicide  depended  upon  an  absolutely  free  will,  no  such 
uniformity  could  appear.  It  is  necessary  to  have  always 
in  mind  this  idea  that  the  uniformity  is  the  product  of 
a  combination,  a  series  of  forces,  which  engender  these 
social  phenomena. 

It  cannot  be  admitted,  as  true,  that  the  laws  of  sta- 
tistics express  orders  of  a  certain  kind,  not  depending 
upon  men,  which  force  to  the  contracting  of  marriages 
and  the  perpetrating  of  crimes  or  suicides;  that  the  mod- 
ifications which  control  the  facts  of  statistics  are  the  con- 
sequences of  the  resistance  of  the  free  will  of  the  indi- 
vidual to  laws  leading  to  these  phenomena.  The  laws 
of  statistics  cannot  be  so  personified.  They  are  not 
forces  engaged  in  a  struggle  with  the  human  will. 

The  explanation  above  given  of  the  essential  distinc- 
tion between  fatalism  and  the  free  will  subjected  to 
the  general  law  of  causation  goes  far  to  permit  the  easy 
solution  of  the  entire  question  as  we  have  stated  it. 
If,  in  fact,  in  denying  altogether  the  existence  of  any 
freedom  of  the  will  from  the  law  of  causation  we  are 
not  thereby  forced  to  accept  the  doctrine  of  fatalism, 
we  have  no  longer  the  principal  motive  for  clinging  to 
the  doctrine  of  the  will's  freedom.  So  that  we  do  not 
accept  the  fatalist  doctrine,  there  follow  no  terrible 
consequences,  and  the  question  can  be  put  on  a  wholly 
scientific  plane. 

Another  widely  spread  error,  based  like  the  preceding 
one  upon  false  logic,  consists  in  admitting  the  existence 
of  a  half -free  will.  It  is  again  because  of  confounding 
the  fatalist  doctrine  with  the  negation  of  the  free  will 
that  such  a  mixed  solution  results. 

The  theory  is  manifestly  false.  It  is  clearly  impos- 
sible that  the  will  should  be  by  turns  free  and  not  free. 
But  the  partisans  of  the  theory  do  not  state  it  in  such 


308  THEORY   OF  LAW 

a  clear  form.  They  present  it  under  a  much  more  com- 
plex one  and  one  requiring  an  attentive  analysis.  I  will 
examine  here  three  very  ingenious  attempts  to  gain 
admittance  for  such  a  theory. 

The  first  is  Fouillee's.  He  seeks  to  prove  that  even 
if  we  do  not  accept  as  a  starting  point  the  existence  of 
the  will's  freedom,  yet  by  a  logical  reasoning  a  certain 
degree  of  freedom  of  the  will  can  be  shown  to  exist. 
Let  us  admit,  says  he,  that  our  wills  are  not  free,  that 
all  our  actions  are  necessarily  determined  by  our  senti- 
ments and  ideas.  If  this  is  so,  nevertheless  we  must 
admit  that  the  idea  of  liberty  of  the  will,  like  every 
other,  may  serve  as  a  stimulant  for  our  voluntary  energy. 
We  can,  in  fact,  see  that  the  men  who  are  convinced 
of  the  freedom  of  their  own  wills  act  in  just  about  the 
same  way  as  if  they  were  really  free.  The  stronger 
this  conviction  is  in  a  man  and  the  more  accustomed 
he  is  to  guiding  himself  in  accordance  with  it  in  all  his 
acts,  the  more  nearly  his  conduct  approximates  to  that 
of  a  man  whose  will  should  actually  be  free.  There- 
fore, though  by  no  means  free,  the  man  can  by  con- 
trolling his  acts  in  accordance  with  this  idea  of  liberty 
act  nevertheless  as  a  free  man  and  approximate  more 
and  more  to  the  ideal  of  liberty.  He  cannot  completely 
reach  this  ideal,  but  he  can  tend  to  come  always  nearer 
and  nearer  to  it. 

It  is  not  doubtful  that  the  man  in  guiding  himself  in 
accordance  with  this  false  notion  of  the  freedom  of  his 
will  can  in  many  cases  act  as  if  he  were  really  free.  Under 
the  necessary  conditions  the  idea  of  liberty  may  become 
the  dominating  motive  of  all  his  activity.  In  seeking 
to  show  himself  and  prove  to  others  that  he  has  a  free 
will,  the  man  may  stifle  the  more  natural  appeals  to 
his  nature,  but  he  has  constrained  himself  in  vain. 
Because  he  has  been  carried  away  by  this  idea  of  lib- 
er tv,  he  has  become  no  freer  on  that  account.  "He  has 


SOCIAL  CONDITIONS  309 

only  become  a  blind  and  miserable  slave  of  an  idea,  a 
passion.  Such  a  man  is  like  a  maniac  who  imagines  him- 
self King  of  Spain.  To  affirm,  as  Fouillee  has  done, 
that  the  belief  in  his  own  freedom  makes  the  man  free, 
is  as  if  one  were  to  say  that  the  maniac's  delusion  can 
really  create  him  King  of  Spain. 

Reid's  theory  is  more  profound.  According  to  him, 
it  is  impossible  to  explain  all  the  phenomena  of  the  will 
under  the  principle  of  causation.  If  the  will  did  not 
have  at  least  some  portion  of  freedom,  it  would  be  im- 
possible for  it  to  reach  a  conclusion  when  in  the  presence 
of  two  equal  motives.  For  example,  if  we  found  before 
us  when  thirsty  two  glasses  of  water  precisely  alike  in 
all  respects,  and  if  there  was  no  freedom  of  choice,  we 
would  have  precisely  an  equal  desire  for  each  and  would 
undergo  the  fate  of  the  ass  in  the  legend,  which  died 
between  two  bundles  of  hay.  We  never  reach  such  a 
situation,  however,  but  always  find  ourselves  able  to 
make  a  choice  even  between  two  absolutely  identical 
objects. 

In  this  possibility  of  choosing  despite  the  perfect 
equality  of  the  things  presented  to  our  desires  our  free- 
dom consists.  When  the  motives  support  each  other  we 
cannot  resist  them,  but  if  they  are  equal  we  can  choose 
one  or  the  other. 

In  this  manner  Reid  outlines  the  frames  within  which 
our  freedom  can  act.  The  cases  in  which  our  opposing 
inclinations  are  absolutely  equal  are  rare  enough  so  that 
a  liberty,  so  restrained,  would  have  little  practical  value. 
In  most  cases  the  man  would  not  act  freely.  Reid's 
doctrine,  however,  cannot  be  accepted.  First  of  all,  it 
cannot  be  said  that  when  the  motives  are  equal  the 
man  can  make  a  choice.  Cases  of  hesitation  and  utter 
irresolution  are  not  rare.  Quite  frequently  it  happens 
to  a  man  as  to  the  bride  in  Gogal's  "Marriage,"  that 
he  can  make  no  choice.  Moreover,  when  a  man,  in 


310  THEORY  OP  LAW 

spite  of  a  precise  equality  of  motives,  does  make  a  choice, 
it  is  not  difficult  to  explain  it  without  resorting  for  that 
purpose  to  the  "freedom  of  the  will."  It  is  explained 
simply  and  completely  by  the  law  of  the  association  of 
ideas.  If  the  man  has  ever  experienced  the  painful  con- 
sequences of  indecision,  this  idea  quickly  comes  back  to 
his  mind,  and  he  at  once  takes  some  resolution  in  order 
to  avoid  such  troublesome  results. 

In  Russia,  especially,  there  has  spread  in  these  latter 
times,  the  idea  that  man  is  in  his  acts  subject  to  the  law 
of  causation;  but  not  in  the  same  manner  as  are  the 
phenomena  of  the  outer  world.  Human  actions  are 
distinguished  from  others  by  the  fact  that  they  are 
determined  not  merely  by  preceding  external  phe- 
nomena, but  also  in  part  by  those  which  are  to  follow. 
Man's  conduct  is  not  merely  the  result  of  impressions 
received  from  without,  but  also  of  his  moral  state,  of 
his  own  character.  It  might  be  said  with  regard  to  the 
fall  of  a  stone,  that  its  fall  is  not  caused  alone  by  the 
movement  of  the  arm  which  started  it,  but  also  by  its 
own  properties.  If  instead  of  throwing  a  stone,  a  bit  of 
down  had  been  thrown,  it  would  have  remained  in  the 
air  instead  of  falling  to  the  earth.  Consequently,  the 
resulting  phenomena  are  not  merely  the  result  of  the 
preceding  action  of  the  arm,  but  also  of  the  still  earlier 
interior  movements  in  the  stone  which  brought  about 
its  own  conformation. 

The  properties  of  the  human  being  are  certainly  more 
complex,  but  there  are  presented  merely  considerations 
of  more  and  less. 

Our  Russian  conception  evidently  mixes  two  essen- 
tially distinct  questions.  Does  freedom  of  the  will 
merely  mean  independence  of  external  conditions?  Evi- 
dently not.  Spinoza,  for  example,  agreeing  with  Des- 
cartes, declares  that  matter  can  have  absolutely  no 
effect  on  spirit,  but  none  the  less  denies  the  freedom  of 


SOCIAL  CONDITIONS  311 

the  will.  Wherefore,  even  if  our  acts  are  the  result 
only  of  previous  external  conditions,  it  is  impossible  to 
affirm  the  freedom  of  the  will.  If  internal  conditions 
are  the  cause  of  actions,  they  are  not  produced  by  any 
free  will. 

So,  all  attempts  to  solve  in  this  manner  the  problem 
of  freedom  of  the  will  are  vain.  We  must  put  the  ques- 
tion categorically,  "Is  the  will  free  or  not  free?"  It 
cannot  be  considered  as  halfway  free.  It  comes  under 
the  principle  of  causation  or  it  does  not.  When  the 
question  is  thus  put  it  is  very  simple,  and  the  answer 
by  no  means  doubtful.  To  maintain  that  the  will  is 
absolutely  free,  is  in  such  formal  contradiction  to  the 
best  known  facts  that  it  today  hardly  finds  any  longer 
a  serious  defender.  Let  us  resume  briefly  the  rea- 
sons which  forbid  the  recognition  of  a  free  will's 
existence. 

First  of  all,  the  law  of  causation  is  an  absolute  prin- 
ciple applicable  equally  without  exception  to  all  phe- 
nomena in  the  world.  Therefore,  there  is  need  of  posi- 
tive scientifically  verified  reasons  for  supposing  that  the 
will  is  the  one  force  not  subject  to  this  law.  We  shall 
see  later  that  such  reasons  have  not  been  found. 

Then  we  know  that  phenomena  universally  have  as 
a  basis  the  law  of  the  conservation  of  force.  Freedom 
of  the  will  is  not  compatible  with  this  theory.  A  free 
movement  of  the  will  is  one  which  is  undetermined  by 
preceding  movements  and  so  does  not  depend  upon  the 
expenditure  of  energy  to  produce  it. 

Finally,  let  us  add  to  this  the  further  consideration 
that  freedom  of  the  will  is  a  logical  absurdity.  Every- 
thing in  order  to  exist  must  do  so  in  a  given  manner 
regulated  in  advance.  This  is  an  indispensable  condi- 
tion for  the  maintaining  of  its  own  identity.  But  the 
free  will  is  something  which  does  not  exist  in  any  deter- 
minate manner,  that  is  to  say,  it  is  a  contradiction  in 


312  THEORY  OP  LAW 

terms.  If  we  take  into  view  the  conditions  of  human 
life,  we  observe  that  the  dependence  of  the  moral  life 
upon  the  organism  is  today  an  uncontested  fact  admitted 
by  all  the  world,  even  by  the  metaphysicians,  as  for 
example,  Hartmann.  But  if  psychic  phenomena  depend 
upon  the  organism  and  it  is  subject  to  the  law  of  causa- 
tion, how  can  they  escape  that  principle.  Still  further, 
the  doctrine  of  the  will's  freedom  is  possible  only  if  we 
admit  the  existence  of  many  independent  forces  in  our 
souls,  and  that  is  a  psychological  theory  which  the  whole 
modern  world  rejects. 

Observation  of  the  facts  also  shows  that  the  essential 
freedom  of  the  will  cannot  be  accepted.  Quite  fre- 
quently it  happens  that  we  are  not  masters  of  ourselves. 
The  man  accustomed  to  analyze  his  own  actions  can 
say  in  advance  for  what  reasons  he  will  do  or  not  do 
some  particular  act  under  given  circumstances.  When 
we  are  not  satisfied  with  ourselves,  when  we  wish  to 
bring  about  some  change  in  our  manner  of  acting,  to 
correct  ourselves  in  some  respect,  we  commence  with  the 
proposition  that  the  will  is  not  free;  we  avoid  malign 
influences;  we  seek  circumstances  which  incline  us  away 
from  old  habits  and  tastes;  we  change  the  milieu;  we 
remove  to  new  surroundings.  By  reading  and  con- 
versation we  compel  ourselves  to  establish  the  new 
way  of  life. 

All  this  is  entirely  incompatible  with  freedom  of  the 
will.  If  the  will  were  free,  what  would  matter  the  men 
with  whom  we  might  consort,  the  books  we  might  read, 
our  own  thoughts  or  our  surroundings,  if  all  this  could 
not  'in  the  least  affect  our  desires  and  our  free  will  were 
in  no  way  determined  by  outer  things?  Observation  of 
ourselves  leads  to  the  conclusion  that  our  wills  are  not 
free. 

Observation  of  others  leads  to  the  same  conclusion, 
and  here  the  demonstration  is  still  more  decisive.  All 


SOCIAL  CONDITIONS  313 

our  relations  with  others  are  based  upon  the  proposition 
that  their  wills  are  not  free.  We  mark  their  character, 
study  the  influences  to  which  they  are  more  or  less 
subject  and  guide  our  own  action  by  the  results  thus 
obtained,  relying  upon  them  in  dealings  with  such  per- 
sons. Supposing  the  will  to  be  free,  we  should  very 
quickly  find  that  durable  relations  are  impossible  among 
men.  We  would  not  know  what  they  are  going  to  do, 
and  we  could  not  in  any  way  get  any  influence  over 
them  which  could  be  relied  upon.  It  is,  too,  only  be- 
cause we  assume  that  the  will  is  not  free  that  we  attempt 
to  teach  the  child.  If  the  will  were  not  determined 
in  any  way  there  would  be  no  such  thing  as  educating 
youth. 

Observation  of  oneself  and  even  of  oneself  in  relations 
to  others  and  of  those  others  cannot  be  considered  as 
rigorously  objective  observation.  The  subjective  rela- 
tion holds  too  large  a  place. 

But  the  results  of  statistics  furnish  very  strong  proofs 
in  support  of  the  doctrine  we  are  maintaining.  They 
show  that  human  actions  which  seem  the  most  spon- 
taneous and  independent  are  reproduced  in  precisely  the 
same  number  from  year  to  year;  whence  this  conse- 
quence is  to  be  drawn,  that  these  acts,  altogether  spon- 
taneous as  they  seem,  are  themselves,  also  determined, 
even  as  all  the  others. 

It  has  been  thought  that  serious  objection  was  raised 
to  this  latter  proof,  in  urging  that  the  regularity  of  the 
figures  furnished  by  statistics  is  easily  explained  by  the 
law  of  averages.  These  are,  it  is  said,  average  figures 
obtained  by  very  numerous  observations  and  have  no 
value  to  determine  what  will  take  place  in  any  given 
instance,  and  therefore  no  relation  to  the  problem  as  to 
the  free  will  of  the  individual. 

This  objection  has  no  importance.  There  is  in  truth 
no  doubt  that  the  regularity  of  the  statistics  is  explained 


314  THEORY  OP  LAW 

by  the  law  of  averages,  but  the  conformity  of  human 
actions  to  the  same  law  has  already  proven  the  regular- 
ity of  those  actions.  The  law  of  averages  itself,  of  course, 
presupposes  a  regularity  in  the  phenomena  subject 
to  it. 

If  the  savant  makes  his  experiments  numerous  enough 
to  set  aside  the  peculiarities  of  the  individual  bodies  he 
employs,  this  necessarily  supposes  that  these  bodies 
themselves  have  a  certain  regularity,  and  that  this 
depends  upon  the  law  of  causation.  Where  some  agency 
may  have  supervened  which  is  not  subject  to  the  effect 
of  law,  a  miracle  for  example,  in  such  a  case  the  law  of 
averages  would  be  inapplicable.  The  influence  of  a 
supernatural  force  cannot  be  set  aside  by  any  augumen- 
tation  of  the  number  of  observations,  and  it  is  precisely 
because  any  such  influence  may  be  disregarded  that  the 
law  of  averages  may  be  used.  It  would  be  the  same 
with  the  will  if  it  were  free.  Freedom,  if  genuine,  would 
make  the  law  of  averages  inapplicable  to  human  actions. 

The  partisans  of  free  will  cannot  bring  to  the  support 
of  their  thesis  a  single  argument  which  is  truly  sound. 
They  allege  that  we  are  sometimes  conscious  of  freedom. 
Does  it  not  happen,  in  fact,  that  under  certain  circum- 
stances, we  are  sometimes  conscious  of  such  freedom, 
and  sometimes,  on  the  contrary,  we  are  perfectly  con- 
scious that  we  are  not  free? 

Quite  often  it  happens  that  we  are  in  doubt  between 
two  conclusions,  and  determine  one  way  or  the  other 
without  any  reason.  Can  it  not  be  said  in  such  a  case 
that  we  have  acted  on  our  own  initiative  without  being 
controlled  by  anything? 

We  would  answer  this  objection  by  inquiring  if  such 
a  case  cannot  be  explained  in  another  way  without 
recurring  to  the  doctrine  of  the  free  will.  If  we  attempt, 
as  is  usually  done,  to  explain  our  acts  by  the  motives, 
alone,  of  which  we  are  conscious,  we  shall  certainly  be 


SOCIAL  CONDITIONS  315 

compelled  to  admit  that  we  cannot  explain  such  a  case. 
But  an  attentive  study  of  psychic  phenomena  shows 
us  that  unconscious  elements  play  also  an  important 
part  by  the  side  of  conscious  ones  in  the  mind,  and  that 
these  unconscious  forces  will  furnish  us  the  explanation 
sought.  If  it  is  true  that  we  are  unconscious  of  the 
motives  which  press  us  to  act  in  such  or  such  a  way, 
this  is  not  to  say  that  our  wills  act  without  any  motive 
at  all.  It  means  only  that  the  determining  motive  was 
an  unconscious  one. 

Thus,  the  sole  objection  which  the  partisans  of  the 
free  will  can  raise,  our  alleged  consciousness  of  it,  would 
disappear.  It  is  no  more  serious  than  all  the  others 
which  have  been  examined  previously  and  whose  weak- 
ness has  been  shown. 


316  THEORY  OF  LAW 


Section  40.     Society  and  the  Individual 

The  essential  distinction  which  we  have  shown  be- 
tween society  and  organisms  does  not  lead  us  to  exclude 
social  phenomena  from  the  principle  of  causation.  The 
characterizing  quality  of  society  consists  in  its  psychic 
nature,  but  if  we  recognize  moral  phenomena  generally 
and  those  of  the  will  in  particular  as  subject  to  the  law 
of  causation,  we  must  recognize  social  phenomena  also 
as  subject  to  the  same  law. 

All  the  factors  by  which  social  life  is  controlled  are 
determined  in  advance.  They  are  all  subject  to  the  law 
of  causation.  This  is  why  the  social  phenomena  which 
they  cause  must  also  necessarily  be  determined.  But 
if  this  is  so,  if  social  and  moral  phenomena  are  them- 
selves subject  to  the  law  of  causation,  can  the  individual 1 
be  opposed  to  society?  Can  there  properly  be  any  talk 
of  independence  on  the  individual's  part?  The  question 
is  double.  From  the  point  of  view  of  modern  psychol- 
ogy can  the  existence  of  an  individual  consciousness  be 
explained  in  such  a  way  as  to  set  this  consciousness 
over  against  the  rest  of  the  universe?  Again,  can 
a  certain  independence  on  the  individual's  part  in  his 
relations  with  society  be  established? 

The  law  of  association  of  ideas  which  serves  as  a  basis 
for  the  whole  doctrine  of  modern  psychology  explains 
what  this  individual  consciousness  is.  It  shows  us  that 

1  Since  Cicero's  time  "individual"  has  indicated  something  such  as  Aris- 
totle meant  by  the  expression  "aStaiperos,"  "indivisible."  But  already 
in  Boethius  this  is  not  the  precise  meaning.  "Individuum"  means  with  him 
what  is  original,  unique.  Commentar.  ad  Porphyr.  ed.  Basil.  1570. 
p.  65.  "Individuum  autem  pluribus  dicitur  modis.  Dicitur  individuum 
quod  animo  secari  non  potest,  ut  unitas  vel  men*;  dicitur  individuum  quod 
ob  soliditatem  dividi  nequit,  ut  adamas;  dicitur  individuum,  cuius  praedicatis 
in  reliqua  similia  non  convenit,  ut  Socrates."  This  last  is  also  Leibnitz's 
meaning. 


SOCIAL  CONDITIONS  317 

all  our  impressions  from  without  are  accompanied  by  a 
series  of  impressions  which  revive  in  the  memory.  This 
second  set  of  impressions  is  not  as  lively  and  clear  as  the 
first.  It  does  not  depend  upon  the  present  external 
milieu,  for  these  internal  impressions  remain  the  same 
whatever  exterior  changes  may  supervene.  We  can,  as 
we  choose,  strengthen  or  weaken,  revive  or  remove  them. 
They  are  not  outside  of,  but  in  us.  They  connect 
every  distinct  particle  of  our  experience  into  a  single 
whole,  into  an  uninterrupted  chain.  Thus,  we  reach 
the  consciousness  of  self  and  come  to  oppose  it  to 
the  external  world.  The  negation  of  the  will  does 
not  interfere  with  the  opposing  of  self  to  exterior  things 
nor  does  it  prevent  the  explaining  of  individual  con- 
sciousness. 

It  may  still  be  objected  that  the  opposition  of  self  to 
the  world  outside,  of  me  to  not-me,  does  not  by  any 
means  embrace  the  whole  notion  of  individuality.  It 
may  be  said  that  such  an  antithesis  gives  only  a  negative 
idea  of  the  individual  and  that  his  existence  is  something 
positive.  He  is  his  own  proper  end.  We  represent  the 
individual  to  ourselves  not  only  as  a  being  opposed  to  all 
the  rest  of  the  universe,  but  also  as  one  which  is  its  own 
supreme  end  and  not  serving  merely  as  a  means  for 
the  realization  of  the  purpose  of  some  other  creature 
than  itself.  If  we  deny  the  freedom  of  the  will  do  we 
not  deny  at  the  same  time  that  the  individual  is  his  own 
proper  end?  If  we  do  not  separate  the  individual 
from  that  chain  of  phenomena  which  indissolubly  con- 
nects them  together  as  causes  and  consequences,  do  we 
not  reduce  the  individual  to  a  state  of  complete  sub- 
mission where  he  ceases  to  exist  for  himself  and  where 
he  is  a  mere  single  link  amid  all  the  links  of  that  un- 
broken chain? 

Whether  the  will  is  free  or  not,  it  is  an  error  to  believe 
that  it  is  of  decisive  importance  for  the  solution  of  the 


318  THEORY  OF  LAW 

question  as  to  whether  or  not  the  individual  is  an  end 
unto  himself. 

The  solution  of  this  question  depends  entirely  upon  the 
significance  which  we  give  to  the  ideas  of  causation  and 
finality.  If  we  admit,  just  once,  the  existence  of  an  ob- 
jective end  for  which  the  universe  was  created  and  which 
has  guided  its  progress  through  the  ages  since,  every- 
thing in  the  world,  and  by  consequence  the  individual 
also,  is  inevitably  reduced  to  the  condition  of  a  means. 
If  the  universe  exists  with  view  to  some  other  end  than 
itself,  all  which  it  contains,  of  course,  is  but  a  means  for 
reaching  that  end.  The  existence  in  the  universe  of 
a  single  phenomenon  which  was  not  brought  about  as 
a  means  for  attaining  that  end,  would  render  the 
teleological  explanation  of  the  world  impossible.  The 
question  of  the  freedom  of  the  will  has  no  importance 
here.  Under  the  teleological  conception  every  indi- 
vidual, however  endowed  with  a  free  will,  would,  none 
the  less,  serve  merely  as  a  means  to  bring  about 
that  end  towards  which  the  entire  universe  is  work- 
ing. 

On  the  other  hand,  the  explanation  of  the  existence  of 
the  universe  by  the  principle  of  causation,  in  denying  the 
existence  of  an  objective  purpose  for  the  whole  world, 
does  away  with  this  idea,  that  the  universe  and  all  which 
it  contains  are  but  a  means.  If  there  is  no  general  pur- 
pose, there  is,  then,  no  question  of  means.  All  is  ex- 
plained, then,  by  the  causal  connection.  Everything  is 
a  product  or  a  cause.  The  explanation  furnished  by  the 
principle  of  causation  allows  only  subjective  ends.  These 
subjective  ends  are  but  our  ideas.  They  exist  only  in  our 
consciousness  and  nowhere  outside  of  us.  There  is  no 
objective  purpose,  but,  outside  of  ourselves,  only  causes 
and  consequences.  With  such  a  conception,  evidently, 
the  individual  cannot  be  recognized  as  only  a  means  to- 
wards an  end  to  which  he  is  a  stranger,  for  the  existence 


SOCIAL  CONDITIONS  319 

of  such  an  end  cannot  be  admitted  under  the  doctrine  of 
causation. 

Whatever  are  the  ends  towards  which  the  individual 
compels  himself  to  strive,  they  exist  only  in  him,  in  his 
consciousness.  They  are  ends  which  he  conceives  and 
whose  elements  he  finds  in  his  own  head.  From  this 
point  of  view,  the  individual  is  objectively  neither  a 
means  nor  an  end.  Subjectively,  it  may  be  said  that  he 
is  his  own  end,  in  the  sense  that  every  end  which  he  con- 
ceives is  a  product  of  his  own  consciousness,  of  his  own 
intelligence. 

The  consciousness  of  the  individual  in  receiving  phe- 
nomena which  present  themselves  to  it  from  without 
compels  itself  to  group  them  into  harmonious  and  satis- 
factory combinations.  The  imagination,  the  fancy,  fills 
out  pleasingly  the  rigorous  facts  of  dry  science;  and  hence 
arises  the  variety  in  the  powers  of  different  indi- 
viduals. Each  of  us  has  a  more  or  less  different  concep- 
tion of  the  universe,  one  more  or  less  embellished.  Each 
individual,  then,  makes  his  own  universe  distinct  from 
that  of  others  and  which  perishes  with  him.  As  long  as 
he  lives,  it  is  in  this  universe  which  he  has  made.  All 
which  he  receives  from  without  has  more  or  less  of  an 
effect,  a  place  which  he  assigns  it  in  this  world  of  his 
own  creation,  and  it  is  the  individual  that  is  his  own 
end. 

The  question  of  individuality,  of  the  independence 
which  the  individual  has  in  the  face  of  the  universe,  is 
not  altogether  exhausted  by  these  considerations.  It  may 
be  claimed  that  if  we  do  not  admit  the  freedom  of  the 
will,  the  individual,  even  if  he  does  not  appear  as  a  means 
for  the  realization  of  an  end  exterior  to  himself,  neverthe- 
less plays  no  part  in  the  universe,  his  independence  quite 
disappears,  and  is  lost  in  the  infinite  chain  of  causes  and 
effects. 

If  every  act  of  the  will  is  determined  necessarily  in 


320  THEORY   OP  LAW 

advance  by  some  other  antecedent  act,  as  in  the  case  of 
all  the  facts  of  the  outer  world,  what  is  there  to  distin- 
guish the  individual  man  from  external  phenomena? 
Naturally,  I  would  not  maintain  the  individual's  inde- 
pendence so  far  as  to  assert  its  completeness  with  refer- 
ence to  the  conditions  of  the  world  which  surrounds  him. 
The  principle  of  causation  cannot  be  reconciled  with  such 
an  independence  as  that.  Nobody  can  say  that  the  indi- 
vidual brings  into  the  world  anything  absolutely  new. 
This  would  contradict  the  principle  of  the  conservation 
of  energy.  Only  relative  independence  can  be  asserted. 
The  difference  is  only  in  the  more  or  less.  Just  as  living 
beings  exhibit  an  example  of  quite  complete  independ- 
ence, as  compared  with  inert  matter,  so  the  individual 
endowed  with  consciousness  would  appear  very  independ- 
ent if  his  condition  were  compared  with  that  of  other 
living  beings. 

The  question  as  to  the  relations  of  the  individual  and 
society  shows  that  the  mechanical  and  the  organic  doc- 
trines result  in  two  equally  inadmissible  conclusions. 
The  mechanical  theory  subjects  society  absolutely  to  the 
individual.  The  organic  theory,  on  the  other  hand,  con- 
siders the  individual  as  merely  a  subordinate  part  of  the 
social  organism,  a  part  completely  determined  by  that 
organism,  one  which  would  seem  to  be  at  the  same  time 
the  product  of  that  organism  and  designed  to  serve  for 
the  realization  of  the  latter's  purpose. 

The  psychic  theory  is  equally  remote  from  each  of 
these  two.  It  would  recognize  the  influence  of  society 
upon  the  individual.  It  admits,  even,  that  he  is  essen- 
tially a  product  of  society,  but  at  the  same  time  it  does 
not  see  in  the  individual  a  mere  subordinate  part  of  the 
great  whole  which  society  is.  It  does  not  agree  with  this 
idea  to  regard  the  individual  as  only  a  means  for  the  ac- 
complishment of  social  ends.  According  to  the  psychic 
theory  the  individual  keeps  his  independence,  his  inde- 


SOCIAL    CONDITIONS  321 

pendent  existence  and  his  special  ends,   differing  from 
those  of  society  and  not  subordinate  to  these  latter. 

The  conception  which  this  last  theory  sets  forth  is  that 
society,  being  a  psychic  union  of  men,  admits,  thanks  to 
that  fact,  of  the  union  of  one  man  with  several  different 
societies. 

The  individual  is  the  product  of  society, — this  is  not 
disputed,  but  of  several  societies  and  not  merely  of  one. 
To  the  influence  over  him  of  one  of  these  societies  the 
individual  opposes  that  which  several  others  are  exercis- 
ing upon  him  at  the  same  time.  In  this  dependence  in 
which  he  finds  himself  upon  different  societies,  the  indi- 
vidual often  finds  in  some  other  a  counterpoise  to  the 
influence  of  each  particular  one.  Neither  state,  nor 
church,  nor  race,  nor  social  class,  nor  community,  nor 
family,  can  entirely  subject  the  individual,  precisely  be- 
cause they  each  tend  to  exercise  such  a  subjection. 

So,  too,  though  the  individual  is  a  product  of  society, 
he  is  never  a  simple  product  of  it,  never  the  simple  reflec- 
tion of  the  principles  which  set  in  motion  a  given  col- 
lectivity. Every  individual  is  the  product  of  the  simul- 
taneous influence  of  several  societies  and  in  each  man 
can  be  seen  combinations  of  distinct  traits  from  many 
social  influences. 

Each  individual  in  society  forms  a  distinct  independent 
principle  which  is  not  completely  adapted  to  the  envi- 
ronment around  it,  which  is  never  completely  fused  with 
that  society,  so  as  to  reach  an  entire  identification  with 
it. 

The  individual  with  characteristics  fixed  is  constantly 
in  movement,  stirred  by  collisions  and  struggles.  He 
tends  to  transform  society  little  by  little  and  so  becomes 
himself  a  source  of  life  and  energy,  and  contributes  to 
the  progress  of  the  social  life.  The  mechanical  theory  of 
society  regards  the  development  of  social  forms  only  as 
a  manifestation  of  the  wills  of  individuals  and  that  will 


322  THEORY  OP  LAW 

as  not  being  determined  or  limited  by  any  objective 
principle.  Social  progress  under  this  view  depends  upon 
the  free  will  of  those  who  are  in  control. 

Under  the  organic  theory,  on  the  contrary,  social  de- 
velopment is  a  rigorously  objective  organic  fact  which 
constrains  individuals,  even  against  their  wills,  to  group 
themselves  according  to  immutable  laws. 

From  our  point  of  view  social  development  is  the  re- 
sultant of  all  the  conscious  tendencies  and  efforts  of 
individuals  (the  active  element),  which  are  reacted  upon, 
also,  (and  this  is  the  passive  element)  by  an  order  of 
things  which  is  the  result  of  a  long  historic  evolution.  The 
objective  social  order  is  therefore  formed,  not  only  under 
the  influence  of  the  tendencies  and  efforts  of  individuals, 
but  also,  under  that  of  objective  factors  which  do 
not  depend  upon  man's  will  and  which  act  throughout 
every  moment  of  his  existence.  The  conception  which 
we  hold  does  not  permit  us  to  suppose  that  society 
will  become  in  time  a  mere  product  of  human  art 
and  will  then  clothe  itself  in  a  purely  conventional 
form. 


SOCIAL  CONDITIONS  323 

Section  41.    Law  and  the  Social  Order 
KORKUNOV.     The  Social  Sphere  of  Law,  1892. 

The  existence  and  especially  the  development  of  every 
organism  supposes  the  preservation  of  its  essential  parts. 
This  is  true,  indeed,  of  every  aggregate,  organic  or  in- 
organic. If  the  action  of  some  part  of  the  mechanism 
destroyed  the  other  parts,  the  mechanism  could  not  act. 
If  in  a  living  being  some  organ  develops  at  the  expense 
of  another,  as  by  depriving  the  latter  of  necessary  nour- 
ishment, the  development  of  the  organism  as  a  whole  is 
arrested. 

This  is  equally  true  of  social  phenomena.  There,  too, 
the  life  and  development  of  the  combination  depends 
upon  the  preservation  and  due  development  of  the  sep- 
arate factors  which  make  up  society.  An  exclusive  de- 
velopment of  one  of  the  factors  may  easily  take  place  in 
a  way  to  be  injurious  to  the  activity  of  other  factors  and 
interfere  with  the  regular  functions  of  the  society  as  a 
whole. 

So  far  as  concerns  a  mechanical  aggregate  the  bond 
connecting  its  parts  is  a  material  one.  It  is  a  mechanical 
arrangement  which  co-ordinates  the  functions  of  the  sev- 
eral parts.  But  as  regards  society,  whose  principle  of 
unity  is  psychic,  the  activity  of  its  different  elements 
must  be  co-ordinated  by  some  different  process.  The 
factor  which  institutes  and  controls  this  co-ordination  in 
society  is  no  other  than  law.  Everybody  recognizes  that 
law  plays  the  regulator's  part  in  society,  but  opinions 
divide  when  it  conies  to  determining  what  the  order  is 
that  law  sets  up. 

If  we  regard  society  as  a  mechanical  aggregate  of  a 
given  number  of  individuals,  and  do  not  consider  the 
individual  as  a  product  of  social  life,  but,  on  the  con- 


324  THEORY  OF  LAW 

trary,  this  society  is  looked  upon  as  the  result  of  a  volun- 
tary agreement  of  individuals,  in  a  word,  if  we  accept  the 
mechanical  conception  of  society,  the  sole  active  factor  in 
social  life  must  be  the  individual  and  his  conscious  will. 
Under  this  theory,  the  social  order  can  be  nothing  but  a 
delimitation  of  the  manifestations  of  separate  individual 
wills. 

The  limits  assigned  to  each  individual  for  the  exercise 
of  his  freedom  of  will,  limits  within  which  that  will  rules 
unchecked,  must  constitute  his  right,  his  law  in  the  sub- 
jective sense.  The  rules  themselves,  establishing  the 
limits  for  individual  wills,  make  up  the  objective 
law. 

Law,  in  the  mechanical  theory  of  society,  is  some- 
thing opposed  by  the  individual  to  society;  something 
which  the  individual,  entering  into  society,  brings  ready 
made  with  him  and  with  which  he  seeks  to  restrain  the 
pretensions  of  social  authority.  The  development  of  the 
organic  notion,  on  the  other  hand,  leads  us  to  recog- 
nize in  law  a  social  order  to  which  the  society  subjects 
the  individuals  who  make  it  up.  Subjective  rights  are 
not  from  this  point  of  view  opposed  to  social  authority, 
but  are  bestowed  by  it.  Law,  consequently,  is  regarded 
as  made  by  society  itself  in  its  own  interest  and  at  the 
same  time  in  that  of  individuals.  If  we  adopt  the  psy- 
chic theory  of  society  we  can  accept  neither  of  these  two 
views. 

If  society  has  only  a  psychic  bond  we  cannot  regard 
law  as  simply  an  order  imposed  by  society  upon  indi- 
viduals who  are  only  passive  beings.  The  final  basis  of 
law  is  the  individual  consciousness.  It  is  there  that  the 
ideas  as  to  the  means  to  be  employed  for  the  delimita- 
tion of  conflicting  interests  take  their  origin;  and,  conse- 
quently, from  thence  arise  all  ideas  as  to  juridical  norms. 
It  is  only  little  by  little  that  the  notion  of  right,  origi- 
nally subjective  and  individual,  has  been  taken  up  by 


SOCIAL  CONDITIONS  325 

others,  has  spread  into  constantly  greater  communities 
and  has  taken  the  form  of  customs,  juridical  practice, 
and  finally,  legislation.  Reaching  this  point  in  its 
development,  the  primitive  conception  of  right  has  be- 
come an  objective  factor  in  social  life.  In  the  same 
way,  too,  it  is  in  the  individual's  consciousness  of  his  ob- 
ligations that  a  solid  foundation,  a  firm  basis  for  the 
action  of  law,  is  found.  Law  takes  effect,  subordinates 
to  itself  the  activity  of  individuals,  not,  however,  in 
such  a  way  as  to  be  by  itself  objectively  the  sole  es- 
sence of  order  in  the  social  life.  The  actual  course 
of  social  life  never  coincides  precisely  with  its  existing 
laws. 

From  a  rigorously  objective  point  of  view,  if  we  are 
satisfied  with  generalizing  actual  phenomena,  the  real 
social  order  would  consist  of  law,  and  of  violations  of 
law.  The  significance  and  power  of  law  consist  simply 
in  this,  that  it  is  recognized  by  all  classes  as  the  neces- 
sary order  of  social  relations.  Wherefore,  law  is  much 
less  an  objectively  established  subjection  of  the  person  to 
society  than  it  is  a  subjective  conception  by  the  person 
himself  of  a  necessary  order  of  social  relations. 

We  must  not  conclude,  however,  that  law  is  always  an 
exclusively  one-sided  product  of  the  personal  individual 
will.  The  mental  fashioning  of  the  necessary  order  of 
social  relations  is  not  a  conscious  and  arbitrary  matter. 
It  is  only  little  by  little  that  the  individual  comes  to  a 
consciousness  of  such  an  ideal,  and  the  process  is  mostly 
unconscious.  So,  he  is  disposed  to  consider  it  as  not  a 
subjective  creation,  but  as  a  reproduction  of  an  order  of 
vital  relations  already  existing  in  an  objective  way  inde- 
pendently of  himself.  The  more  primitive  the  individ- 
ual's intellectual  culture,  the  less  he  comprehends  the 
subjective  nature  of  his  social  ideal,  and  the  less  he  dis- 
tinguishes between  his  own  subjective  conceptions  and 
the  reality  which  surrounds  him. 


326  THEORY  OF  LAW 

To  go  still  farther,  the  individual's  conceptions  not 
only  have  no  arbitrary  character.  They  are  not  entirely 
the  act  of  the  individual.  The  unconscious  processes  of 
their  formation  are  determined  not  merely  by  the  sub- 
jective qualities  of  the  individual,  but  also  by  his  envi- 
ronment. Moreover,  even  as  regards  his  subjective  qual- 
ities, they  commonly  are  formed  under  the  double  influ- 
ence of  heredity  and  environment. 

The  social  ideal  of  one  individual  is  usually  that  of  his 
neighbor  in  the  same  society,  at  most  there  are  only  dif- 
ferences of  detail. 

In  the  beginning  personal  peculiarities  were  fewer,  the 
forms  of  human  action  and  of  social  relations  were  not 
nearly  so  numerous.  State  and  social  life  embraced  the 
whole  circle  of  human  life,  all  the  interests  of  mankind. 
Religion  itself  was  a  state  institution.  Under  such  con- 
ditions the  whole  of  the  development  of  the  individuals 
who  composed  the  state  was  fixed  solely  by  their  mere 
environment.  There  was  then  no  possibility  of  meeting, 
as  today,  individuals  belonging  to  different  social  groups. 
The  various  societies  and  differing  churches  did  not  exist. 
The  individual  ideal  was  naturally  the  same  in  all.  So 
before  the  acquiring  of  individual  conceptions  as  to  what 
ought  to  be  the  regular  legal  relations  between  members 
of  the  society,  the  general  rules  governing  these  relations 
had  become  fixed  and  were  known  to  all  the  world. 
Shaping  itself  in  the  course  of  time  the  individual  con- 
ception of  such  legal  rules  showed  already  a  partial  devi- 
ation from  the  immemorial  uniformity  characteristic  of 
primitive  law. 

At  the  same  time  law  does  not  simply  render  possible 
the  coexistence  of  individuals  in  some  degree  of  liberty. 
Law  constitutes,  also,  an  important  condition  of  human 
progress.  The  circle  of  social  life  constitutes  a  com- 
bination of  interests  of  the  different  individuals  who 
make  up  society.  These  interests  are  very  variable  and 


SOCIAL  CONDITIONS  327 

changeable,  like  those  of  individuals  in  that  respect.  Ac- 
cording to  the  times,  in  fact  according  to  the  different 
situations  in  which  he  finds  himself,  the  same  person  is 
controlled  often  by  entirely  contrary  interests.  So,  in 
the  general  advance  of  social  life  there  may  come  the 
same  contradiction  of  interests.  Under  different  politi- 
cal religious  or  economical  conditions  societies  are  domi- 
nated by  turns  by  various  interests  which  concern  all 
and  put  in  action  the  whole  social  activity.  If  there 
comes  a  change  of  conditions,  a  new  orientation  directs 
the  social  mind,  and  with  it  come  new  interests  which 
overturn  the  old.  In  the  absence  of  law  to  fix  the  bounds 
for  these  striving  interests  the  predominance  in  the  society 
of  certain  interests  would  quickly  ruin  the  weaker  ones 
and  by  consequence  deprive  the  society  of  conditions 
indispensable  to  its  further  development.  The  future 
would  be  sacrificed  to  the  exigencies  of  the  present. 

Regular  social  development  would  be  seriously  endan- 
gered, if  indispensable  future  interests  are  sacrificed  to 
the  controlling  one  of  the  moment,  for  example  the  one 
which  seeks  to  assure  public  order,  when,  in  seeking  to 
prevent  the  dissemination  of  dangerous  doctrines,  it  would 
stifle  all  manifestation  of  ideas.  Order  would  perhaps  be 
restored  more  quickly,  but  in  the  end  society  would 
suffer  a  grievous  calamity  if  all  liberty  of  the  tribune  or 
of  the  press  were  taken  away. 

Law  in  delimiting  the  interests  which  make  up  the 
social  life  removes  the  possibility  of  such  harm.  Any  in- 
terest which  has  gained  a  legal  standing  will  always  find 
some  minority  to  defend  it.  If  the  rule  of  law  is  accepted 
in  the  society  and  the  legal  rights  of  minorities  respected, 
the  contemned  interest  will  be  upheld  by  this  minority 
and  the  society's  future  vindicated. 


328  THEORY  OF  LAW 


Section  42.     The  Form  of  Human  Groupings 

MOHL.  Geschichte  und  Literatur  der  Staatswissenschaften,  1855. 
1.  s.  67  ff. 

The  arrangement  of  men  into  social  groups  may  take 
place  under  very  different  forms.  The  chief  distinction 
among  them  consists,  however,  in  their  origins.  Do  they 
arise  voluntarily  on  the  man's  part,  or  independently  of 
his  will?  Of  course,  in  the  first  case  we  have  a  voluntary, 
and  in  the  latter,  an  involuntary  group.  The  state  and 
the  family  may  serve  as  examples  of  the  latter.  Stock 
companies,  clubs,  and  learned  societies  are  instances  of 
the'  former. 

This  distinction  based  on  the  origin  of  the  grouping  is 
very  important  in  the  organization  of  society.  The  modi- 
fication of  the  man  in  respect  to  the  society  into  which 
he  has  come  of  his  own  free  will  cannot  be  very  extensive 
since  he  can  always  leave  it.  Vastly  greater,  however, 
is  his  subjection  to  the  society  of  which  he  is  an  involun- 
tary member. 

Societies  of  the  latter  category,  the  so-called  necessary 
groupings,  present  three  different  types.  They  can  be 
based  upon  unity  of  origin  (family,  or  tribe),  upon  unity 
of  territorial  location  (commune,  state),  or  upon  unity  of 
interests  (associations,  companies).  A  certain  solidarity, 
of  course,  there  is  among  the  members  of  every  grouping, 
but  in  some  societies  this  results  from  the  collective  life, 
instead  of  producing  the  collectivity,  in  the  family  and 
in  the  state,  for  example,  while  in  others  it  is  the  basis 
and  not  the  result  of  the  grouping.  It  is  easy  to  see  that 
this  classification  of  necessary  groupings  corresponds  to 
different  epochs  of  the  social  life. 

In  the  groupings  founded  upon  unity  of  origin  it  is  the 
influence  of  the  past  which  holds  the  first  place,  in  those 


SOCIAL  CONDITIONS  329 

based  upon  life  in  the  commune  it  is  the  present,  while 
in  the  groupings  which  rest  upon  unity  of  interests  it  is 
the  future. 

For  a  long  time  social  science  recognized  the  existence 
only  of  the  first  two  classes  and  especially  among  them 
the  family  and  the  state.  Only  towards  the  end  of  the 
XVIII  century  did  the  idea  arise  that  at  the  side  of  the 
state  were  other  forms  of  groupings,  that  men  while  being 
citizens  of  the  same  state  could  also  be  members  of  other 
associations  and  could  even  enter  into  such  relations  with 
citizens  of  another  state. 

Scheltzer  first  advanced  this  idea  in  his  treatise  on 
political  science.  He  indicated  the  need  there  was  for  a 
distinct  science  for  the  study  of  those  associations  spring- 
ing up  outside  of  the  state  and  which  he  called,  by  anal- 
ogy to  metaphysics,  metapolitical, — a  science  of  social 
phenomena  outside  of  the  state  and  of  political  life.  He 
limited  himself  to  this  observation.  The  practical  con- 
sequences which  he  drew  from  it  were  of  little  impor- 
tance, and  it  was  only  after  the  appearance  of  the  new 
socialistic  school  that  the  learned  were  led  to  examine 
more  closely  the  questions  arising  as  to  the  groupings. 
The  socialist  school  brought  forward  the  conception  that 
a  political  reorganization  is  not  sufficient,  that  there 
must  be  a  social  reorganization. 

The  socialists  by  the  side  of  the  conception  of  a  polit- 
ical revolution  have  developed  the  idea  of  another,  a 
social  revolution,  concerning  itself  only  with  social  phe- 
nomena which  they  say  exist  independently  of  any  par- 
ticular organization  of  government.  They  have  thus 
given  a  new  impulse  to  the  study  of  social  groupings 
among  mankind,  groupings  which  exist  along  with  the 
state,  and  must  have  a  place  at  its  side.  This  was  the 
practical  resu1t  which  they  derived  from  the  doctrine  of 
the  independent  social  existence  of  these  groupings. 

Almost  at  the  same  time  as  the  appearance  of  these 


330  THEORY  OF  LAW 

socialistic  teachings,  Hegel,  the  renowned  German  phi- 
losopher, tried  to  establish  an  intermediary  link  between 
the  individual  and  his  family  on  one  side  and  the  state 
and  its  government  on  the  other  side.  He  recognizes  in 
the  development  of  social  life  not  merely  two  phases, 
but  three.  The  family  is  not  for  Hegel  what  it  was  for 
everybody  else  in  his  time,  the  immediate  basis  of  the 
state.  The  family,  according  to  him,  is  the  thesis,  whose 
antithesis  is  not  the  state  but  civil  society,  which  is  the 
result  of  the  partial  disruption  of  the  family.  Civil  soci- 
ety is  in  opposition  to  the  unity  of  the  family  and  is  an 
intermediate  step  between  the  family  and  the  state.  The 
state  personifies  and  combines  the  unity  of  the  family, 
together  with  the  diversity  of  civil  society. 

Hegel,  meanwhile,  though  recognizing  clearly  enough 
that  the  study  of  society  cannot  be,  as  tradition  had  to 
that  time  made  it,  limited  to  the  family  and  the  state, 
did  not  define  the  form  of  this  "civil"  society  and  has 
not  left  us  a  clear  notion  of  what  he  thought  it  was. 
Hegel's  general  dialectics,  in  fact,  admit  the  existence  of 
only  transitory  forms.  All  phenomena  are  for  him  mo- 
mentary transitions  from  thesis  to  synthesis.  In  con- 
formity to  this,  civil  society,  also,  assumes  with  him  the 
character  of  antithesis.  All  the  processes  of  social  devel- 
opment consist  merely  in  this,  the  opposing  to  the  unity 
of  the  family  the  variety  of  other  social  forms  and  in 
this  method  leading  to  a  higher  social  form,  the  state. 
In  this  manner  his  doctrine  as  to  civil  society  does  not 
have  in  Hegel's  system  an  independent  value.  It  appears 
as  merely  an  intermediate  moment  of  the  development  of 
social  life  and  must  be  completed  by  the  appearance  of 
the  state. 

Under  Hegel's  influence  and  especially  under  the  doc- 
trine of  socialism,  Lorenz  Stein  in  his  critical  study  of 
socialism  and  communism,  L'histoire  des  mouvements 
socialistes  en  Prance,  tried  thus  to  set  forth  his  theory 


SOCIAL  CONDITIONS  331 

of  society.  Following  Hegel's  example  in  his  dialectical 
method,  he  asserts  distinct  movements,  one  succeeding 
to  another,  the  series  embracing  the  entire  development 
of  social  lie.  At  the  same  time  he  comes  nearer  to  setting 
forth  the  contents  of  social  life.  Examining  the  socialist 
doctrine,  he  asks  what  is  society?  What  is  this  social 
reform  the  socialists  are  talking  about?  It  should  be 
said  in  passing,  that  the  life  of  the  modern  state  at  the 
moment  when  the  socialists  raised  these  questions  was 
such  as  to  call  especial  attention  to  economic  questions. 
The  revolution,  in  breaking  the  absolute  power  of  the 
kings  had  given  more  freedom  to  the  third  class  in  soci- 
ety, the  bourgeoisie,  the  capitalists,  but  the  fourth  class 
which  constituted  the  greatest  part  of  the  nation  were 
totally  ignored  and  left  out  of  all  these  political  reforms. 
For  the  members  of  this  last  class  the  economic  question 
is  of  the  most  importance,  for,  aside  from  the  guaranty 
of  his  menial  existence,  the  law  has  for  him  no  value. 
Stein  puts  himself  at  this  point  of  view  for  his  exami- 
nation of  society,  almost  solely  the  economic  point  of 
view. 

Therefore,  following  Hegel's  general  method  and  yield- 
ing to  the  direct  influence  of  socialism,  Stein  gives  only 
a  one-sided  view  of  society.  With  him,  also,  the  family 
appears  as  the  representative  of  unity,  civil  society  of  the 
diversity  introduced  by  economic  life  between  which  two 
the  government  stands  as  that  which  establishes  the 
unity  and  national  well  being  of  economic  interests.  No 
such  narrow  conception  of  society  can  satisfy  the  mind. 
It  was  quickly  observed  that  harmonious  and  seductive 
as  Hegel's  and  Stein's  systems  appeared,  they  presented 
grave  defects.  They  leave,  in  fact,  entirely  at  one  side 
certain  social  forms  which  cannot,  however,  be  regarded 
in  modern  times  as  incorporated  into  the  state's  govern- 
ment. The  question  of  the  freedom  of  associations  is 
raised  practically  by  the  religious  societies.  Religious 


332  THEORY  OF   LAW 

dogmas  furnish  a  basis  for  a  social  grouping  which  is  at 
the  same  time  extensive  and  independent,  an  association 
which  does  not  have  as  a  basis  any  definite  frontiers, 
nor  for  its  mission  any  of  the  ends  proposed  by  the 
state. 

In  the  middle  ages,  when  the  church  herself  exercised 
political  power,  there  was  no  occasion  to  raise  the  ques- 
tion as  to  the  independence  of  the  great  society  she  built 
up.  The  church  at  that  time  appeared  everywhere  as 
a  political  body.  The  same  must  be  said  of  the 
Protestant  churches.  They  were  everywhere  state  in- 
stitutions, and  instruments  of  government  were  at  the 
same  time  organs  of  the  church.  But  in  the  same  degree 
that  principles  of  religious  liberty  developed,  to  the 
extent  that  the  church  separated  itself  from  the  state, 
the  identification  of  church  and  state  were  condemned, 
and  the  question  of  the  independence  of  religious  asso- 
ciations was  once  more  raised.  It  is  easy  to  see  that 
the  church  plays  no  economic  part.  It  remains  by  the 
side  of  the  state  without  forming  an  integral  part  of 
it,  since  the  same  church  embraces  several  states, 
adopting  different  types  of  social  organization,  of  which 
the  state  cannot  be  considered  either  as  a  part  or  as  the 
whole. 

German  philosophers  have  sought  to  give  to  the  theory 
of  society  a  wider  development  and  with  a  double  point 
of  view.  On  one  side  the  representatives  of  the  organic 
school  have  applied  their  theory  to  that  of  society. 
In  examining  the  different  manifestations  of  individual 
activity,  they  have  thought  that  the  distinct  forms  of 
grouping  ought  to  correspond  to  special  needs  of  human 
nature.  In  this  way  the  university  satisfies  the  need  of 
education;  economic  associations  and  the  church  corre- 
spond to  some  definite  needs.  The  representatives  of  the 
organic  school  thus  have  come  to  recognize  a  series  of 
collective  groupings  each  of  which  is  an  independent 


SOCIAL  CONDITIONS  333 

organ  satisfying  certain  needs.  Such  is  the  doctrine 
of  Ahrens. 

This  doctrine  cannot  be  precisely  maintained.  R.  Mohl 
in  his  interesting  article,  The  Social  and  Political  Sci- 
ences, whose  main  subject  is  the  nature  of  society,  as 
also  in  his  Geschichte  und  Literatur  der  Staats  "Wissen- 
schaften,  propounds  a  serious  objection  to  Ahrens'  doc- 
trine. This  doctrine,  says  he,  shows  us  a  mass  of  group- 
ings, schools,  churches,  economic  associations,  etc.,  but 
does  not  show  us  any  general  conception  of  society  in 
distinction  from  the  state. 

Meanwhile,  if  we  take  the  church  and  those  various 
combinations  born  of  a  country's  economic  life,  we  dis- 
cover an  essential  resemblance  among  them.  The  eccle- 
siastical societies  arise  out  of  the  common  interests  of  the 
members  because  a  given  group  of  men  holding  the  same 
religious  dogmas  have  need  of  identical  religious  cere- 
monies. So  they  form  themselves  into  a  society.  The 
same  thing  is  true  as  to  the  associations  having  an  eco- 
nomic purpose.  Laborers' ,  merchants' ,  land  holders' ,  farm- 
ers', and  bankers'  associations  are  created  by  a  common 
interest.  Between  these  groups  and  the  church  the  dif- 
ference is  said  to  be  only  in  the  basis,  but  that  basis  is 
found  to  be  identical,  a  common  interest.  In  the  eco- 
nomic groupings  the  basis  is  an  economic  common  interest, 
in  the  church  a  religious  one. 

Mohl,  continuing  his  observations  and  study  of  differ- 
ent forms  of  groupings,  observes  that  there  are  at  the 
same  time  numerous  variations  among  the  forms  which 
these  associations  take.  In  every  state,  besides  the  church 
and  the  associations  for  economic  purposes,  there  are 
classes  and  ranks  which  are  also  groupings  of  men  com- 
bined for  a  common  interest.  The  nobility,  the  towns- 
men, the  peasants,  are  three  distinct  orders,  each  asso- 
ciated together  by  common  interests.  Castes  arise  later 
out  of  classes,  but  these  latter  are  already  established  on 


334  THEORY  OP  LAW 

the  basis  of  a  common  interest, — community,  culture,  in- 
struction, etc.  If  we  consider  the  internal  organization 
of  the  modern  state  we  shall  see  that  its  different  parts 
— provinces,  communes,  etc., — have  also  their  common 
independent  life,  their  common  interests  independent  of 
the  state  at  large;  with  which  latter  they  may  even  come 
into  conflict.  These  common  interests  have  as  their 
basis  the  communal  life  realized  upon  a  certain  ter- 
ritory. In  modern  states  the  distribution  of  popu- 
lation by  no  means  corresponds  to  nationality,  but 
national  unity  appears  as  an  important  factor  in  inter- 
national matters. 

In  this  way  Mohl  comes  by  observation  to  the  con- 
ception of  a  category  of  social  groups  united  by  reason 
of  a  community  of  permanent  interests.  Each  such 
group  is  distinguished  from  others  essentially  by  the 
point  in  which  lies  unity  of  interests.  These  interests 
may  or  may  not  coincide  with  the  state's  interests. 
Cities  on  the  different  sides  of  the  borders  of  two  states 
may  have  common  interests,  as  matters  of  hygiene  for 
example.  So  different  states  may  have  common  inter- 
ests in  regulating  the  navigation  of  a  stream  flowing 
through  both.  Society  which  took  its  birth  from  the  fact 
of  joint  residence  on  the  same  territory  cannot  have  the 
same  limits  as  the  state  itself.  The  different  lines  of 
collective  grouping  which  have  been  mentioned  per- 
mit the  ranging  in  the  same  category  all  the  group- 
ings other  than  those  of  the  state  and  family.  Society, 
according  to  Mohl's  definition,  is  a  combination  of 
human  groups  whose  basis  is  a  common  permanent  in- 
terest. 

Mohl's  ideas  as  to  the  independent  existence  of  society 
as  distinguished  from  the  state  are  now  widely  held. 
In  the  article  which  we  have  noted  he  tried  to  study 
society  independently  of  the  state  and  organize  a 
system  of  social  sciences  comparable  to  the  political 


SOCIAL  CONDITIONS  335 

sciences.  As  a  whole  his  theory  may  be  accepted,  but 
requires  some  corrections  in  detail. 

It  is  impossible,  for  example,  to  agree  with  him  that 
the  nation  whose  members  are  connected  together  by 
community  of  origin  and  that  the  communes  whose 
inhabitants  are  united  by  the  fact  of  neighborhood  can 
be  classed  together  and  both  regarded  as  social  groups 
having  for  basis  the  unity  of  their  interests.  If  the 
citizens  of  the  same  nation  or  the  members  of  the  same 
commune  have  common  interests  it  is  none  the  less  true 
that  the  community  of  interests  is  not  the  basis,  but  a 
result  of  this  association.  The  nation  or  the  commune 
exists  before  the  individuals  who  make  it  up  recognize 
the  unity  of  their  interests.  The  church,  on  the  con- 
trary, is  created  only  by  the  unity  of  faith,  and  the  eco- 
nomic groups  are  formed  only  by  and  because  of  the 
community  of  economic  interests. 

Among  the  different  forms  which  society  may  take  is 
that  of  the  state,  which  is  of  the  highest  importance  for 
us  since  the  state  is  the  chief  factor  in  the  development 
of  law,  and  in  the  enforcement  of  its  authority  against 
law-breaking.  We  therefore  stop  here  in  a  special  way 
to  study  the  nature  of  the  state,  the  political  society. 


CHAPTER  II 

THE  STATE 
Section  43.     The  Concept  of  the  State 

MOHL.     Encyclopedia  of  Political  Science,  pp.  23,  49-64. 
ZACHARIAE.     Deutsches  Staats  und  Bundesrecht.     3  Ausg.    1886, 
BI.     s.  40. 

GUMPLOWICZ.     Philosophisches  Staatsrecht,  1877.     s.  15-19. 

HUGO  PREUSS.     Gemeinde,  Staat,  Reich.     1889. 

KORKUNOV.     Russian  Public  Law,  I.,  pp.  1-48.     6th  ed.,  1908. 

Among  the  different  forms  of  human  association,  chief 
importance  must  unquestionably  be  given  to  the  state. 
There  was  a  time  when  it  took  up  into  itself  all  the  ac- 
tivities, without  exception,  of  human  life.  Throughout 
classical  antiquity  the  man  was  completely  swallowed 
up  in  the  citizen  of  a  state.  In  our  day,  while  at  the 
side  of  the  state  there  are  a  good  many  other  social 
groupings,  the  state  succeeds  in  making  its  influence  felt 
at  all  points  of  the  social  life.  Under  all  circumstances 
the  history  of  humanity  develops  itself  chiefly  under  the 
form  of  political  activity. 

So  in  studying  social  phenomena  of  any  sort  one  col- 
lides constantly  with  questions  of  the  organization,  or 
of  the  forms,  or  of  the  activity,  of  the  state.  For  a 
long  time,  as  we  have  already  said,  the  theory  of  the 
state,  politics,  embraced  all  the  science  of  social  phe- 
nomena. 

Under  such  conditions  it  would  seem  that  a  definition 
of  the  state  ought  to  be  easily  agreed  upon  by  all  the 
world.  It  has  not  been  so.  If,  in  truth,  we  meet  with 
a  great  diversity  of  definitions  in  literature,  this  is  ex- 

336 


SOCIAL  CONDITIONS  337 

plained  by  the  fact  that  in  most  of  them  is  included 
matter  not  pertaining  to  its  purpose. 

Thus,  first  of  all,  a  good  many  in  defining  the  state 
have  in  view  to  indicate  how  it  must  be  in  order  to  be 
in  harmony  with  their  own  views;  that  is,  they  trans- 
form the  definition  into  a  criticism  of  the  state.  Mohl, 
for  example,  defines  the  state  as  an  unique  and  perma- 
nent organism  of  institutions  which,  "guided  by  the 
general  will,  sustain  and  put  in  operation  the  general 
force,  and  have  for  their  end  the  aiding  of  a  given  people 
upon  a  given  territory  in  all  its  social  activity,  internal 
as  well  as  external."  It  is  certainly  impossible  to  affirm 
that  all  states  which  exist  or  have  existed  have  pursued 
only  these  permitted  ends  allowed  by  this  definition, 
and  have  thereby  contributed  to  the  development  of 
human  life. 

Welker's  definition  goes  farther  yet.  He  defines  the 
state  as  "a  personified,  sovereign,  living  and  free  human 
association.  Within  the  limits  of  its  constitutional  pact 
this  combination  under  the  direction  of  an  independent 
constitutional  government,  aspires  to  liberty  under  law 
and  within  its  limits  to  the  realization  of  the  destiny  and 
happiness  of  its  numbers." 

To  the  same  category,  it  would  seem,  belong  those 
definitions  which  indicate  the  end  which  the  state  ought 
to  serve.  No  such  definition  can  satisfy  us  if  we  are 
seeking  one  which  will  apply  to  all  states. 

Other  definitions  are  limited  to  indicating  the  place  in 
a  given  philosophic  system  which  the  conception  of  the 
state  should  occupy.  Hegel,  for  example,  defines  it  as 
"the  reality  of  concrete  liberty."1  To  comprehend  this 
definition  it  is  necessary  to  know  what  Hegel  means  by 
the  terms  reality  (Wirklichkeit)  and  concrete  liberty  (Kon- 
kreten  Freiheit).  This  definition  offers  no  meaning  apart 

i  Hegel's  Philosophic  des  Rechts.      Werke  B.  VIII.      s.  314.      "Der  Staat  ist 
die  Wirk  lichkeit  des  konkreten  Freiheits." 


338  THEORY  OF  LAW 

from  Hegel's  system  of  philosophy.  By  itself  it  is  non- 
sense. 

Schelling's  definition  is  of  the  same  character.  "The 
state,"  said  he,  "is  the  harmony  of  liberty  and  necessity." 
Such  definitions  are  too  subjective  despite  their  wish 
to  indicate  not  what  the  state  ought  to  be  but  what  it 
in  fact  is.  They  are  subjective  because  they  rest  upon 
a  given  philosophic  conception,  which,  never  having  been 
objectively  proved,  depends  always  upon  subjective  con- 
viction.1 

Finally,  very  often  writers  feel  compelled  to  give  a 
definition  which  shall  settle  in  advance  all  the  most  im- 
portant political  questions,  all  the  problems  which  po- 
litical science  raises,  so  that  the  whole  doctrine  of  the 
state  can  be  constructed  as  a  series  of  logical  conse- 
quences of  the  given  definition.  But  since  many  of  the 
most  important  questions  in  political  science  are  still  in 
our  time  matters  of  controversy,  it  results  that  we  are 
given  in  the  definition  contested  matters  for  ascertained 
facts.  Such  are  the  definitions  of  the  state  as  an  organ 
of,  or  as  personifying  a  will.  There  is  hardly  need  to 
say  that  the  definitions,  thus  settling  in  advance  all  these 
disputed  matters,  are  far  from  getting  any  unanimous 
assent. 

Universally,  in  studying  historic  forms  of  human  soci- 
eties, the  political  character  of  certain  groupings  are 
hardly  ever  in  doubt.  In  a  good  many  cases  there  is 
complete  unanimity  as  to  the  question  of  whether  or 

1  Here  are  some  more  definitions  of  the  same  kind: — 

Ahrens.  Der  Staat  is  in  dem  allgemeinen  Gesellschaftsorganismus  der  jenige 
besondere  Organismus,  welcher  durch  das  Band  des  Rechts  und  vom  Mittel- 
punkt  einer  centralen  Macht,  aus  alle  gesellscharten  Kreise  zu  einer  rechtlichen 
Einheit  und  Ordnung  verknupft. 

Bluntschli.  Der  Staat  ist  der  politische  organizirte  Volksperson  eines 
bestimmten  Landes. 

Schulze.  Der  Staat  ist  die  Vereinigung  eines  sesshaften  Volkes  zu  einem 
organischen  Gemelnwesen  unter  einen  bestimmten  Verfassung,  zur  Verwirk- 
lichung  aller  Gemeinswecke  des  Volksleben,  vor  allem  sur  Verstellung  der  Rechts- 
ordnung. 


SOCIAL  CONDITIONS  339 

not  they  are  or  were  states.  If  there  is  sometimes  a 
doubt,  such  as  Finland  now  presents,  nobody  attaches 
to  its  solution  any  question  as  to  whether  its  nature  is 
organic  or  personal,  or  as  to  the  end  for  which  it  is  or- 
ganized, but  the  one  question  is  whether  we  can  recog- 
nize in  it  the  existence  of  an  independent  force-using 
authority. 

But  the  power  of  the  state  is  exhibited  with  special 
clearness.  Among  all  the  social  groupings  the  state  is 
the  dominating  power  par  excellence.  In  antiquity  the 
state  embraced  man's  whole  social  life  and  all  the  other 
forms  of  groupings  were  only  parts  of  the  state,  and 
subject  to  it.  The  state  at  that  time  would  be  defined 
as  the  typical  society,  as  the  grouping  which  had  need 
of  no  other  and  depended  upon  no  one.  It  is  thus  that 
Aristotle  defines  the  state. 

In  the  middle  ages  the  state's  authority  was  severely 
pressed  upon  by  the  great  landholders  with  their  ten- 
dency to  make  of  the  state  a  mere  contractual  union  be- 
tween the  representatives  of  the  feudal  proprietaries,  and 
also,  by  the  tendencies  of  the  Roman  crmrch  which  wished 
to  take  power  into  its  own  hands.  When  at  the  time  of 
the  renaissance  authority  began  to  recover  its  former 
rdle,  preoccupied,  as  it  then  was,  with  setting  aside  all 
influences  capable  of  upholding  the  feudal  tradition, 
there  was  recognized  in  the  state  a  sovereign  power,  an 
absolute  and  unlimited  authority.  The  sovereignty  and 
supremacy  of  the  state  were  then  considered  as  its  essen- 
tial attributes. 

This  notion  of  sovereignty  was  set  forth  for  the  first 
time  by  Bodin  (De  la  republique,  1583),  who  defines 
sovereignty  as  an  absolute,  unlimited  and  independent 
authority.  The  same  idea  was  stated  in  still  more  en- 
ergetic terms  by  Hobbes,  who  styles  the  state  "a  mortal 
divinity."  The  conception  of  sovereignty  thus  under- 
stood was  maintained  until  about  1870. 


340  THEORY  OF  LAW 

In  our  day  a  more  careful  examination  of  the  condi- 
tions attending  the  organization  of  federal  states  and  of 
the  international  relations  of  all  states  in  general  has 
compelled  the  late  writers  to  reject  the  conception  of 
sovereignty  as  a  distinctive  attribute  of  the  state.  For 
the  most  part,  like  Laband  and  Jellinek,  they  confine 
themselves  to  recognizing  as  possible  the  existence  of  both 
sovereign  and  non-sovereign  states,  and  the  autonomous 
existence  of  states  which  enter  into  the  formation  of  a 
greater  federal  state.  Others  go  farther  yet  and,  like 
H.  Preuss,  reject  entirely  the  notion  of  sovereignty,  and 
affirm  that  there  is  in  reality  no  sovereign  state,  exer- 
cising an  absolute  and  unlimited  authority.  The  author- 
ity of  each  state,  they  say,  is  in  fact  limited  and  de- 
pends externally  upon  international  relations  and  inter- 
nally upon  the  organization  of  the  different  groupings 
which  compose  it. 

It  is  impossible  to  confute  the  arguments  which 
Preuss  brings  forward.  He  shows  in  the  course  of  them 
that  the  state's  power  is  based  upon  the  consciousness 
which  men  have  of  their  dependence  upon  the  state. 
But  this  consciousness  cannot  be  unconditioned  and 
absolute,  because  men  recognize  their  dependence  not 
only  upon  the  state,  but  also  upon  a  good  many  other 
societies  as  necessary  as  the  state.  If  any  society  would 
pretend  absolute  dominion  over  men  it  would  be  the 
church. 

For  the  real  believer,  the  church's  authority  is  cer- 
tainly the  greatest  of  all,  for  the  holy  writings  teach  us 
that  it  is  necessary  to  obey  God  rather  than  men.  The 
church,  sole  and  eternal,  does  not,  like  the  state,  depend 
upon  conditions  of  time  and  space.  Finally,  in  it  acts 
divine  grace,  the  highest  of  all  powers.  So,  it  cannot 
be  .affirmed  that  the  state  is  distinguished  from  the 
church  by  the  possession  of  absolute  and  unlimited 
authority. 


SOCIAL   CONDITIONS  341 

The  distinctive  attribute  of  the  state  is  that  "it  alone 
employs,  in  an  independent  manner,  coercive  power." 
All  other  societies,  however  independent  they  may  be 
in  certain  relations,  use  coercive  means  only  by  authori- 
zation and  under  the  control  of  the  state.  If  it  some- 
times happens  that  the  church  uses  force,  it  is  so  used 
only  within  the  limits  allowed  by  local  political  author- 
ity. In  the  same  way,  too,  the  authority  of  parents  over 
children,  of  husbands  over  wives,  is  established  by  polit- 
ical legislation  and  is  exercised  under  the  control  of  gov- 
ernmental agencies.  There  is  always  an  appeal  to  the 
authority  of  the  state  from  the  abuse  of  coercion  in 
the  church  or  in  the  family.  The  authority  of  the 
communes  and  of  the  provinces  is  equally  subject  to 
this  control. 

The  state,  then,  is  to  be  regarded  as  the  great  dis- 
penser of  constraint.  Political  order  is  distinguished 
most  of  all  by  this  trait,  that  it  is  a  peaceful  order  which 
allows  of  no  individual  violence  and  only  permits  itself 
to  enforce  justice.  Only  organs  of  governmental  author- 
ity have  the  right  of  constraint.  Private  persons  and 
other  associations  are  permitted  to  use  it  only  within 
the  limits  where  the  state  authorizes  and  controls  it. 
Even  in  international  relations,  war  is  only  authorized; 
that  is,  the  various  acts  of  hostile  violence  are  performed 
only  by  agencies  of  the  state. 

Independent  coercive  authority,  we  would  say  again, 
is  the  characteristic  attribute  of  the  state;  but  this  in- 
dependence is  not  such  as  to  be  entirely  unlimited  and 
absolutely  free.  So,  while  the  distinct  states  which 
make  up  the  federal  state  and  are,  consequently,  sub- 
ject to  the  federation's  authority,  are  of  limited  com- 
petency, they  remain  states  in  their  own  territory  and 
are  independent  within  the  limits  of  their  competency. 
Practically  this  independence  is  usually  expressed  by 
the  fact  that  they  create,  themselves,  the  instruments 


342  THEORY  OF  LAW 

designed  to  enforce  their  own  authority  without  being 
subject  in  doing  so  to  the  federal  authority. 

On  the  other  hand,  communes  and  provinces  in  a  uni- 
fied state,  even  if  they  have  a  considerable  degree  of 
autonomy,  never  have  such  complete  freedom  in  desig- 
nating the  personnel  of  their  various  organs.  The  cen- 
tral authority  keeps  the  right  of  controlling  the  per- 
sonnel of  the  various  administrative  circles  by  means 
of  the  direct  nomination  of  some  functionaries  or,  fre- 
quently, by  approving  their  election,  or  frequently  again 
by  means  of  a  right  to  annul  an  election  and  hold  a 
new  one,  if  the  result  of  the  last  one  was  not  in  har- 
mony with  the  wishes  of  the  central  administration.  A 
federal  government  is  never  armed  with  such  rights  over 
the  states  or  cantons  which  form  the  federal  state.  No 
federal  authority  is  charged  with  naming  state  governors, 
with  approving  elections,  or  dissolving  local  assemblies 
in  the  states  or  cantons.  The  difference  is  an  essential 
one. 

So  far  as  the  central  power  has  no  control  or  direct 
influence  over  the  make-up  of  local  administrative  bodies, 
the  limitations  imposed  on  these  bodies  have  only  an 
exterior  and  formal  character.  Their  internal  character, 
the  precise  orientation  of  their  activity,  cannot  be  de- 
termined in  advance  by  formal  disposition  of  law.  When, 
on  the  contrary,  the  central  authority  takes  in  hand 
the  composition  of  the  local  administrations,  it  aug- 
ments so  far  its  own  influence  as  to  supply,  itself,  the 
main  activity  of  the  local  organs  of  power,  inasmuch 
as  it  is  after  depriving  them  of  their  local  attachment 
and  independence  that  it  makes  them  organs  of  the  local 
autonomy. 

It  must  be  added,  too,  that  the  existence  of  a  state 
presupposes,  necessarily,  an  independent  control  exer- 
cised over  free  men.  Otherwise  it  would  be  a  constraint 
employed  over  slaves  and  not  governmental  control. 


SOCIAL  CONDITIONS  343 

The  state  supposes  always  a  fixed  domination  recog- 
nized by  all.  A  mere  fact  of  control,  an  establishment 
sustained  by  force  alone,  a  military  occupation,  for 
example,  over  an  enemy's  territory  is  no  state. 

So,  considering  as  a  whole  all  that  has  been  observed 
we  may  define  the  state  as  a  social  body  asserting  for 
itself  independent,  recognized,  coercive,  governmental 
control  over  a  free  people. 

The  attribution  to  the  state  of  this  exclusive  right  of 
coercion  is  of  extreme  importance  for  the  whole  social 
life.  There  results,  first  of  all,  a  great  reduction  in  the 
number  of  cases  of  violence  and  with  it  a  great  economy 
of  force.  The  constraint  exercised  by  the  state  accord- 
ing to  law  does  not  provoke  resistance,  because,  for  one 
thing,  the  preponderance  of  force  is  in  most  cases  on 
the  side  of  the  government  and  leaves  no  chance  of  suc- 
cess in  a  struggle  with  it.  This  idea  aside,  the  authority 
of  government  is  submitted  to  voluntarily,  from  habit 
and  duty.  The  change  in  the  character  of  the  constraint 
is  something  still  more  important.  If  the  state  assumes 
the  sole  right  to  constrain,  it  ought  to  exercise  it  in 
all  cases  of  real  need.  It  should  be  exercised,  not  only 
in  cases  where  such  use  of  it  coincides  with  the  state's 
own  interest,  but  also  in  others.  If  it  does  not,  then 
the  citizen  must  necessarily  enforce  his  own  right.  But 
to  act  for  the  interest  of  another  is  not  the  same  thing 
as  to  act  for  one's  own.  The  setting  in  motion  of  con- 
straint exercised  by  the  state  with  a  view  to  prevent 
violence  and  private  wars  is  not  the  consequence  of  an 
unreflecting  spontaneous  sentiment  of  government.  The 
organs  of  the  state  to  which  the  task  of  watching  over 
the  interests  of  individuals  and  of  other  societies  is  con- 
fided are  moved  in  fulfilling  this  function  solely  by  the 
sentiment  of  duty;  that  is  to  say,  the  action  of  power 
under  such  circumstances  is  tranquil,  impartial,  and  taken 
after  mature  reflection. 


344  THEORY  OF  LAW 

The  certainty  of  success,  the  consciousness  they  have 
of  ability  to  compel  obedience,  adds  to  the  calmness  in 
action  of  the  government's  organs.  The  constraint  which 
the  state  employs  is  not  determined,  therefore,  by  un- 
reflecting violent  natural  feelings,  but  by  more  general 
considerations,  better  conformed  to  law  and  morals. 
The  constraint  is,  so  to  say,  disciplined  by  law.  It  is 
penetrated  with  ethical  principles.  This  quality  in  con- 
straint is  shown  at  the  beginning,  only  when  the  gov- 
ernment has  to  repress  violences  which  do  not  assail  its 
own  personnel.  But  little  by  little  the  state  comes  to 
apply  the  same  principles  even  when  it  has  to  intervene 
to  protect  its  own  personnel.  This  movement  comes 
out  clearly  when  it  becomes  necessary  to  rigorously  re- 
press common  law  crimes  on  the  one  part,  and  political 
offenses  on  the  other. 

The  controversies  which  arise  over  obtaining  the 
extradition  of  a  political  offender  are  explained  pre- 
cisely by  the  doubt  which  is  entertained  as  to  the  rela- 
tions which  there  ought  to  be  between  the  injured  state 
and  its  neighbors.  The  manner  of  acting  which  is  most 
equitable,  most  in  conformity  with  moral  sentiment,  and 
which  has  been  a  long  time  followed,  is  generalized  and 
puts  its  imprint  on  the  whole  coercive  activity  of  the 
state,  which  subjects  itself  more  and  more  to  the  require- 
ments of  justice. 


SOCIAL  CONDITIONS  345 

Section  44.     Governmental  Authority 
KORKUNOV.     Ukaz  i  zakon  (Decretals  and  Law).     1894. 

We  have  defined  the  state  as  a  social  government 
invested  with  coercive  and  independent  authority,  but 
we  have  not  explained  in  what  that  authority  consists. 
From  the  days  of  scholasticism  down  to  ours,  the  con- 
ception of  authority  was  that  of  a  single  will,  supreme 
mistress  in  the  state.  The  authority  of  the  state  has 
been  sometimes  confused  with  the  will  of  those  ruling 
in  it.  Others  have  conceived  the  state's  authority  as 
the  supreme  will  and  those  who  hold  power  as  the  organs 
of  that  will,  which  must  not  be  confused  with  the  will 
of  those  governing. 

At  the  first  view  the  identification  of  the  state's  au- 
thority with  the  will  of  those  governing  seems  to  cor- 
respond well  with  the  reality.  The  existence  of  will  in 
government  is  an  unquestionable  fact,  and  the  citizens 
are  struggling  together  constantly  over  its  manifestation. 
The  existence,  on  the  contrary,  of  some  particular  supreme 
will  only  appears  as  a  quite  vague  hypothesis.  It  is 
manifested  in  practice  in  the  orders  and  acts  of  those 
governing. 

It  is  in  this  way  that  the  existence  in  the  political 
schools  of  a  whole  group  of  writers  who  identify  the 
state's  will  with  the  concrete  will  of  those  momentarily 
governing  it,  is  explained.  The  best  representative  of 
this  class  of  writers  in  our  day  is  Prof.  Max  Seydel  of 
Munich.  Such  a  conception  of  the  state's  authority 
may  appeal  to  the  realist  because  it  rests  upon  no  meta- 
physical assumption.  The  existence  of  governments  and 
of  their  wills  is  something  certain,  real,  but  this  alone 
does  not  explain  the  phenomena  of  the  state's  domina- 
tion. Submission  to  political  authority  cannot  be  ex- 


346  THEORY  OF   LAW 

plained  on  the  basis  of  the  personal  power  of  those  who 
govern.  Political  history  shows  us  by  numerous  exam- 
ples that  thousands  of  persons  are  obedient  to  the  orders 
of  one,  and  that  one  often  destitute  of  intelligence,  simply 
because  that  one  person  was  recognized  as  representing 
the  state's  authority;  and  celebrated  statesmen,  on  the 
other  hand,  have  been  compelled  to  shelter  themselves 
behind  a  ruler  who  was  of  no  importance  from  the  intel- 
lectual point  of  view,  but  was  the  bearer  of  governmental 
authority. 

Moreover,  the  submission  to  rulers  is  never  absolute. 
They  are  obeyed  only  so  far  as  they  are  recognized  as 
representing  something  higher  than  their  own  personal 
will.  If  public  opinion  pronounces  the  activity  of  those 
who  are  at  the  head  of  the  state  to  be  arbitrary,  obedi- 
ence falls  off  very  quickly,  and  a  revolution  becomes 
inevitable. 

All  this  leads  to  the  conclusion  that  submission  to  the 
state's  authority  does  not  depend  upon  any  quality  of 
the  personal  will  of  those  who  rule,  and  the  dominating 
opinion  in  political  literature  considers  them  only  as 
representatives  of  a  higher  will  to  which  that  of  indi- 
viduals ought  to  be  subject.  In  the  middle  ages  this 
sovereign  will,  manifest  in  acts  of  government,  was  said 
to  be  the  divine  will.  XVIII  century  political  ideas  re- 
placed this  religious  notion  with  that  of  the  social  com- 
pact. 

The  authority  of  the  state  is  considered  as  the  general 
will  of  the  citizens  who  have  decided  to  form  a  state  and 
to  submit  themselves  under  certain  given  conditions  to 
the  government  which  they  are  establishing.  Conform- 
ably to  this  theory,  the  power  which  the  government 
has  exists  only  so  far  as  it  is  the  expression  of  the  general 
will  in  accordance  with  the  social  compact. 

From  about  the  beginning  of  the  XIX  century  the 
contract  theory  began  to  be  replaced  by  others.  The 


SOCIAL  CONDITIONS  347 

state  was  no  longer  considered  to  be  a  thing  of  man's 
arbitrary  institution,  but  as  an  objectively  necessary  form 
of  human  society  and  as  the  result  of  a  preconceived 
progress  of  history.  In  these  latter  theories  of  the  state's 
will,  it  is  no  longer  the  collective  will  of  individuals  nor 
the  divine  will.  It  is  the  abstract  will  of  the  state  itself, 
regarded  as  a  distinct  and  independent  person  which  ex- 
plains the  state's  authority.  Most  writers  on  constitu- 
tional law  see  in  the  state's  power  the  expression  of  the 
will  of  the  state  itself,  of  which  the  government  is  only 
an  organ.  This  explanation,  meanwhile,  will  not  answer 
the  purposes  of  science.  First  of  all,  the  state  can  be 
recognized  as  a  person  endowed  with  a  distinct  will  only 
by  means  of  a  legal  fiction.  For  being  a  person,  the 
state  lacks  the  prime  condition,  unity  of  personal  con- 
sciousness. But  fictions  can  only  serve  to  simplify  in  our 
thought  the  complexity  of  real  phenomena  into  a  con- 
ceived and  pretended  unity,  that  is,  into  something  we 
can  grasp  better.  Fiction  is  powerless  to  furnish  any 
genuine  explanation  of  phenomena. 

Power  in  a  state  serves  precisely  as  the  bond  and 
recognition  of  its  unity.  Every  state  has  its  power,  and 
where  there  are  several  such  powers,  there  are  several 
states.  For  this  reason,  if  sovereign  power  is  the  expres- 
sion of  will,  it  must  express  only  a  single  will.  But  it  is 
impossible  to  explain  all  the  manifestations  of  the  state's 
domination  as  manifestations  of  one  sole  will.  In  his- 
tory, the  life  of  a  state  does  not  appear  as  the  mani- 
festation of  one  unique  will,  dominating  all  others,  but, 
quite  the  contrary,  it  appears  as  a  struggle  between  op- 
posing wills.  The  legal  organization  of  the  state  is  most 
commonly  the  work  of  several  independent  wills,  partly 
of  some  and  partly  of  others. 

We  see  this  especially  in  constitutional  monarchies. 
They  are  established  precisely  by  a  combination  of  the 
will  of  the  sovereign  and  of  that  which  is  expressed  by 


348  THEORY  OF  LAW 

the  national  representation,  and  it  is  to  be  observed  that 
very  often  it  is  the  constitution  itself  which,  so  to  say, 
divides  the  will  of  the  state  by  charging  different  insti- 
tutions with  the  performance  of  different  functions  which 
together  constitute  the  state's  sovereignty. 

Evidently,  unity  of  will  is  not  here  anything  regarded 
as  desirable.  It  would  rather  appear  to  be  considered  a 
danger  to  be  guarded  against.  For  the  same  reason,  for 
example,  the  national  representatives  are  divided  into 
two  houses.  If  the  authority  of  the  state  lay  in  a  single 
unique  will,  all  the  efforts  of  the  state  would  tend  towards 
the  organization  of  unity  in  the  expression  of  that  will. 
It  would,  by  consequence,  be  impossible  to  admit  of  the 
separation  of  the  powers  of  government,  of  that  decen- 
tralization which  is  deemed  so  necessary  in  modern  times, 
and  which  supposes  precisely  that  the  main  functions  of 
the  state  can  be  exercised  separately  and  independently 
of  one  another. 

But  there  is  another  very  important  argument  against 
the  conception  of  the  state  as  the  embodiment  of  supreme 
will.  Not  only  is  it  true  that  all  the  phenomena  of  state 
control  cannot  be  explained  as  a  manifestation  of  a  single 
will;  they  cannot  even  be  explained  as  manifestations 
of  any  will  whatever.  It  is  in  legislation  that  the  will 
of  the  sovereign  most  distinctly  appears.  It  is,  in  fact, 
the  legislator  who  gives  orders,  while  the  judge  pro- 
nounces sentences,  and  the  executive  acts.  Therefore  if 
sovereignty  and  will  were  the  same  thing,  legislation 
would  necessarily  be  its  prime  function.  But  in  the  prim- 
itive states  societies  are  governed  by  customary  laws  and 
have  no  legislation.  On  the  other  hand,  the  state  never 
does  without  the  administration  of  justice  or  without  the 
executive  power.  We  observe  farther  that  not  only  the 
citizens,  but  foreigners  too,  if  within  the  state's  territory, 
are  subject  to  the  organs  of  its  power.  The  authority 
of  the  state  is  shown  over  its  own  citizens  not  only  in 


SOCIAL  CONDITIONS  349 

subjecting  them  passively  to  its  control,  but  also 
in  requiring  them  to  contribute  actively  to  its 
support. 

The  citizen  differs  from  the  foreigner  in  that  he  takes 
an  active  part  in  the  state's  life,  its  preservation  and 
its  development.  He  performs  his  duty  of  submission 
to  the  state  not  only  when  he  carries  out  the  orders 
of  his  government,  but  also  when  he  forces  himself  to 
investigate  and  understand  the  true  needs  of  the  state 
and  to  strive  to  prevent  faults  and  abuses  on  the  part 
of  his  rulers.  If  the  subjection  of  citizens  in  a  state 
consisted  merely  in  the  obligation  to  carry  out  its  orders, 
the  state  would  not  last  long.  It  would  inevitably  soon 
fall  to  pieces.  The  authority  of  the  rulers'  orders  does 
not  have,  as  one  might  suppose,  its  basis  in  physical 
force  and  external  constraint.  The  different  organs  of 
power  in  the  state  are  always  a  minority  of  the  citizens. 
Those  bound  to  obey  are  always  more  numerous  than 
their  rulers.  The  obligatory  force  of  government  orders 
does  not  rest  in  the  last  analysis  upon  anything 
but  their  recognition,  their  tacit  acceptance,  by 
society.  Every  citizen  taken  separately  is  bound  to 
yield  to  the  orders  of  the  state's  officers,  not 
merely  because  they  require  it,  but  above  all  because 
society,  as  a  whole,  has  recognized  these  orders  as 
obligatory  upon  each  member.  To  recognize  the 
authority  of  such  orders,  to  be  morally  constrained 
to  submit  to  them  is  not  to  be  reduced  to  the  per- 
forming the  commands  emanating  from  a  stranger's 
will. 

It  should  be  added  that  in  general  the  conceptions 
of  authority  and  of  will  should  not  be  confused.  Will 
is  not  by  itself  authority.  There  are  wills  without  force, 
and  there  is  force  without  will.  Authority  is  given  to 
a  will  from  the  outside.  It  is  something  else,  quite  apart, 
and  not  to  be  confused  with  it.  The  will  aspires  to 


350  THEORY    OF    LAW 

authority,  is  or  is  not  invested  with  it.  It  serves  as  the 
object  of  will.  Farther,  authority  itself  does  not  pre- 
suppose necessarily  a  governing  will.  Take  the  simplest 
case  of  the  use  of  authority,  that  by  one  man  over  an- 
other. This  authority  can  exist  without  there  being  any 
dominating  will.  The  man  who  exercises  an  ascendancy 
over  another  by  holiness,  genius,  talent,  or  beauty,  often 
does  so  without  dreaming  of  it,  without  wishing  for  it, 
and  is  sometimes  annoyed  and  troubled  by  it.  The 
genuine  ascetic,  assuredly,  mortifies  his  flesh  from  no 
aspiration  for  power.  He  crushes  all  his  desires,  and 
precisely  on  this  account  finds  himself  exercising  a  very 
great  authority  among  men. 

Thus,  the  conception  of  authority  does  not  necessarily 
coincide  with  that  of  a  dominating  will.  It  happens 
that  the  will  dominates,  but  this  does  not  of  necessity 
imply  that  every  act  of  will  is  with  a  view  to  such  domi- 
nation. Divinities,  which  are  a  work  of  the  imagina- 
tion, nevertheless  dominate.  They  surely  have  no  ac- 
tual will.  Man  is  often  subject  to  ideas  which  call  out 
phenomena  absolutely  foreign  to  all  will,  as  for  example, 
the  idea  of  an  impending  misfortune,  that  of  a  malady, 
or  some  superstition,  etc.  All  these  examples  compel 
us  to  recognize  that  power  does  not  necessarily  pre- 
suppose the  existence  of  a  will  directed  towards  the 
object  of  domination.  Domination  does  not  presuppose 
consciousness  on  the  active  side,  on  the  part  of  the 
dominator,  but  on  the  passive  side,  the  side  of  the  domi- 
nated. All  those  things  on  which  a  man  thinks  he 
depends  have  power  over  him,  whether  or  not  they 
are  capable  of  will.  For  the  establishment  of  the  dom- 
ination it  is  not  necessary  that  there  be  actual  depend- 
ence. It  suffices  if  there  is  the  consciousness  of  depend- 
ence. In  other  words,  authority  depends  not  on  the 
will  of  the  ruler,  but  upon  the  consciousness  of  the 
subject. 


SOCIAL  CONDITIONS  351 

If  this  is  so,  there  is  no  need  of  attributing  will  to 
the  state  and  of  personifying  it  in  order  to  explain 
the  state's  authority.  Since  authority  is  a  force  whose 
existence  is  conditioned  only  upon  consciousness  of  de- 
pendence on  the  part  of  the  subject,  the  state  must 
have  authority  whether  there  is  in  it  any  conscious 
public  will  or  not,  so  long  as  the  people  recognize  their 
dependence  upon  the  state.  Governmental  authority 
is  not  any  one's  will,  but  is  a  force  arising  out  of  the 
citizen's  consciousness  of  his  dependence  on  the  state. 


352  THEORY  OF  LAW 


Section  45.     The  Organs  of  Authority 

Governmental  authority,  as  a  force  conditioned  upon 
the  recognition  on  the  part  of  the  citizens  of  their  de- 
pendence with  regard  to  the  state,  produces  in  the  social 
life  various  phenomena,  and,  too,  of  a  double  kind. 
First,  it  urges  the  citizen  to  perform  whatever  seems  in- 
dispensable to  that  state  on  which  he  recognizes  his  own 
dependence.  On  this  rest  the  sentiments  of  patriotism, 
readiness  to  sacrifice  for  native  land,  fondness  for  polit- 
ical activity,  etc.;  in  a  word,  all  that  united  a  people 
into  one  state  and  serves  finally  as  supports  for  its 
power. 

But  this  does  not  exhaust  the  activity  of  governmental 
control.  It  leads  secondly  to  the  citizens  obeying  the 
orders  of  certain  persons  who  are  recognized  as  organs 
of  state  authority.  The  different  acts  by  which  the 
state's  functions  are  performed  may  assist  or  interfere 
with  the  realization  of  other  human  interests.  Hence 
man's  desire  to  advance  the  realization  of  his  own  in- 
terests by  its  means.  He  seeks  to  give  to  the  state's 
activity  a  direction  favorable  to  his  own  needs.  How 
shall  the  man  thus  subordinate  to  himself  this  authority? 
Just  like  any  other  force,  for  example  one  of  the  forces 
of  nature.  He  produces  such  forces  where  he  needs 
them,  where  they  will  be  useful  to  him.  He  is  com- 
pelled, on  the  other  hand,  to  paralyze  or  counteract 
them  when  they  are  harming  his  interests. 

A  force  develops  freely  only  when  conditions  favor 
the  development.  So,  for  the  use  of  mechanical  force  a 
motor  and  tools  are  requisite.  Authority,  as  has  been 
shown,  has  its  source  in  men's  consciousness  of  depend- 
ence on  the  state.  To  incite  authority  to  action  needs 
only  the  ability  to  incite  among  the  citizens  this  feeling 


SOCIAL  CONDITIONS  353 

of  their  dependence  and  give  them  a  definite  object. 
The  man  will  best  understand  how  to  incite  such  action 
who  interprets  it  best,  sets  forth  most  completely  the 
situation  and  explains  the  dependence,  the  need  of  a 
higher  power  which  is  felt  by  all  his  fellow  citizens. 

If  a  man,  for  example,  is  filled  with  the  idea  of  sick- 
ness or  death,  a  sorcerer  or  physician  in  whom  he  has 
placed  confidence  will  have  almost  unlimited  power  over 
him.  So,  a  pious  man  filled  with  repentance  for  an  act 
just  committed  will  be  in  absolute  dependence  upon  any- 
one whom  he  really  accepts  as  an  interpreter  of  the 
divine  will,  an  intermediary  between  men  and  God, 

In  the  same  way  our  consciousness  of  dependence 
upon  the  state  can  be  utilized  by  him  whom  we  consider 
as  the  interpreter  of  the  interests  of  society.  Men  ac- 
quire such  a  position  in  several  ways,  by  success  in  arms. 
by  the  spirit  of  resolution  which  they  have  shown  under 
pressing  circumstances,  by  wealth,  etc.  He  is  never  a 
sole  interpreter.  The  complexity  and  diversity  of  rela- 
tions in  the  life  of  the  state  always  produce  naturally 
a  variety  of  interpreters  for  the  different  needs  of  the 
social  life. 

The  authority  of  our  fellow-citizens  is  not  always  a 
proof  that  they  are  regarded  as  the  best  interpreters  of 
our  needs.  We  often  submit  to  a  man  simply  because 
others  have  done  so  and  because  we  think  those  others 
more  competent  judges  of  his  fitness  than  ourselves. 
This  submission  augments  his  power  and  assures  him 
that  he  can  follow  his  designs.  So,  then,  our  depend- 
ence with  regard  to  the  state  leads  us  to  submit,  not 
merely  to  the  one  we  consider  as  the  best  interpreter  of 
our  interests,  but  more  often  to  the  one  already  holding 
authority  over  the  majority  of  our  fellow-citizens.  Even 
when  the  submission  has  no  political  character;  when, 
for  instance,  it  is  religious,  it  increases  the  political  power 
of  him  who  holds  it. 


354  THEORY  OF  LAW 

We  should  not  forget  that  purely  personal  qualities 
in  the  individual  play  a  great  part,  too,  in  contributing 
to  his  authority;  intellect,  force,  vigor,  birth,  wealth, 
are  factors  very  important  for  all  who  adopt  a  political 
career. 

Such  are  some  of  the  reasons  for  which  we  submit  as 
individuals  of  the  same  society  to  the  judgment  and  the 
will  of  other  men.  Personal  influence,  authority  over  a 
greater  or  smaller  mass  of  persons,  these  are  for  us  deter- 
mining motives  which  lead  to  the  recognition  of  this  or 
that  individual  as  the  best  interpreter  of  our  needs  in 
our  relations  with  the  state. 

But  the  wills  of  these  individuals  do  not  constitute 
the  power  of  the  state.  Their  wills  only  acquire  the 
capacity  of  directing  under  certain  circumstances  the 
action  of  the  state  and  controlling  its  authority.  That 
authority  is  not  simply  the  result  of  their  wills,  it  is  the 
result  of  that  force  which  takes  its  rise  from  our  con- 
sciousness of  our  relations  towards  the  state,  towards 
that  social  grouping  which  has  for  a  mission  our  protec- 
tion against  other  states  without,  and  against  violence 
of  every  kind  within,  by  guaranteeing  social  peace. 

The  individuals  whom  we  recognize  as  the  represen- 
tatives of  the  dominating  idea  are  its  representatives. 
The  recognized  savants  represent  science,  the  artists  rep- 
resent art;  but  we  certainly  do  not  intend  thereby  to 
personify  science  or  art  or  to  attribute  to  them  a  special 
will  different  from  that  of  the  savants  or  of  the  artists. 
In  the  same  sense  we  should  call  representatives  of  the 
state  those  who  interpret  our  social  needs  without  for 
that  reason,  necessarily,  attributing  to  the  state  any 
special  will.  The  state,  like  science,  can  have  repre- 
sentatives without  being  for  that  reason  endowed  with 
any  distinct  will  of  its  own. 

Each  of  us  by  different  processes,  individuals  as  well 
as  whole  social  groups,  must  get  some  authority  from 


SOCIAL  CONDITIONS  355 

the  state  as  a  force  for  the  realization  of  our  own  private 
interests.  This  situation  produces  some  conflicts  for  the 
possession  and  use  of  the  state's  power.  There  are,  too, 
conflicts  and  struggles  which  arise  over  the  possession  of 
other  things.  Some  conventions,  some  principles,  some 
rules  for  determining  interests  necessarily  spring  up. 
They  quickly  become  juridical  rules  which  regulate  the 
employment  of  the  state's  authority. 

This  juridical  regulation  gives  rise  to  some  rights  and 
some  duties  in  favor  of  and  against  each  person.  It 
brings  thus  into  our  relations  with  the  state  an  always 
increasing  complexity.  So  long  as  only  de  facto  rela- 
tions exist  between  the  state  and  the  citizen,  the  sub- 
mission is  not  a  duty  but  a  fact.  I  submit,  constantly, 
to  anyone  who  produces  in  me  a  strong  enough  idea  of 
submission.  If  the  idea  were  to  disappear  the  subjec- 
tion would  go  with  it.  But  in  our  relations  with  him 
who  holds  us  under  an  obligation  of  duty  imposed  by 
a  lawful  governmental  provision,  this  submission  is  a 
duty  imposed  by  positive  law  and  not  resting  simply  upon 
our  consciousness  of  dependence.  Orders  from  a  police- 
man are  obeyed  because  important  social  groups  are 
subject  to  him  in  certain  ways.  The  submission  is  not 
to  his  personal  prestige,  but  because  the  law  has  recog- 
nized him  by  conferring  certain  authority.  This  obli- 
gation and  obedience  arose  first  from  consciousness  of 
dependence  upon  the  state  and  then  from  fear  of  punish- 
ment, or  of  some  other  disagreeable  circumstances  to 
arise  from  disobedience. 

Those  persons  who  have  a  recognized  right  of  using 
within  certain  limits  the  state's  authority  are  its  organs; 
and  since  what  an  organ  does  is  generally  called  its  func- 
tion, those  acts  of  authority  which  fall  within  its  legal 
competency  are  called  its  functions,  and  even,  doing  away 
with  the  connection  between  the  organ  and  its  acts, 
these  last  are  regarded  as  functions  of  authority  just  as 


356  THEORY  OF  LAW 

we  call  in  general  the  functions  of  living  beings,  taken 
collectively,  functions  of  organic  life. 

The  realization  of  functions  of  authority,  in  view  of 
the  great  diversity  among  them,  requires  ordinarily  the 
activity  of  many  persons  and  extensive  material  means. 
For  this  reason  state  organs  are  largely  not  individuals, 
but  institutions,  having  a  personnel  and  a  more  or  less 
complex  organization. 

If  now  we  examine  the  organization  of  these  diverse 
institutions  we  discover  that  among  the  persons  com- 
posing them,  some  decide  precisely  the  direction  to  be 
given  to  the  organ  of  authority,  and  others  merely  assist 
in  the  work  of  administration  and  are  under  the  orders 
of  the  first.  So,  then,  the  different  institutions  in  a  state 
are  themselves  composed  of  two  categories  of  organs, 
those  which  decide  and  whose  which  merely  co-operate 
in  the  execution  of  decisions. 

The  organs  which  decide  are  the  immediate  and  direct 
organs  of  power  in  the  narrow  sense  of  the  word  (Amt- 
Pouwir).  The  co-operating  organs  are  not  immediate 
ones,  but  merely  assist  those  which  have  the  power  of 
decision.  Thus  the  judge  or  the  tribunal  renders  jus- 
tice, while  the  clerks,  sheriffs,  and  policemen  only  co- 
operate in  the  work  by  getting  ready  the  proceedings, 
making  the  arrest  or  executing  judgments.  The  co-oper- 
ation, too,  may  take  three  different  forms.  It  consists 
sometimes  in  preparing  the  case  or  affair  by  co-ordinat- 
ing the  different  elements  involved, — preparation.  Or 
it  may  consist  in  counsels  given  to  the  really  deciding 
organ, — advice.  Or,  finally,  it  may  consist  in  carrying 
out  the  conclusion  reached, — execution. 

So  these  co-operating  organs  are  divided  into  the 
preparative,  the  consultive,  and  the  executive  ones.  The 
preparative  one  procures  the  facts  and  materials  from 
which  the  decision  must  be  made;  the  consultive  pro- 
poses a  plan  for  the  decision;  finally,  the  executive  puts 


SOCIAL  CONDITIONS  357 

in  actual  realization  the  effect  of  the  decision  by  mate- 
rial force.  These  different  functions  are  not  all  accom- 
plished, however,  by  distinct  organs.  A  single  organ 
often  unites  many  functions.  Thus  in  the  tribunals  ordi- 
narily there  is  no  one  distinctly  charged  with  the  con- 
sultive  function.  With  the  justice  of  the  peace  the  pre- 
paratory assistance  is  almost  wholly  lacking.  In  other 
cases,  on  the  other  hand,  these  accessory  organs  may 
have  an  excessive,  even  almost  abnormal,  development. 
So  among  us  (Russia)  all  the  organs  of  the  higher  ad- 
ministration are  co-operative  ones.  Such  are  the  counsel 
of  state  and  the  ministry.  This  distinction  between  the 
different  categories  of  organs  is  found  in  a  greater  or 
less  degree  among  all  the  state's  institutions.  The  ab- 
sence of  consultive  organs  in  the  administration  of  jus- 
tice is  by  no  means  a  necessary  condition  of  those  func- 
tions. At  Rome  there  was  in  the  tribunals  a  body  of 
consultive  officers,  the  assessors.  But  at  Rome  the  judge 
was  not  a  lawyer  and  must  have  recourse  to  skilled  assist- 
ance, to  the  jurist,  to  get  the  rules  of  law  covering  the 
particular  litigation  in  hand.  The  giving  of  such  advice 
to  the  praetor  was  called  assidere.  The  assessors  gradu- 
ally obtained  official  recognition. 

In  the  organization  of  parliament  we  find  also  these 
different  organs.  The  two  chambers  decide  by  their 
votes.  The  officers,  clerks  and  secretaries  prepare  mat- 
ters for  submission.  The  committees  are  the  consultive 
organs  and  finally  the  guards,  sergeants-at-arms,  etc.,  are 
the  executives  of  the  purely  parliamentary  functions. 

In  the  ministries  it  is  the  minister  himself  who  decides. 
The  department  constitutes  the  organ  of  preparation, 
while  the  consultive  organ  is  the  council  of  state  and 
the  different  special  advisers  appointed  for  technical  quali- 
fications. The  ministries  being  central  institutions  need 
no  executive  organs  apart  from  the  general  executive  of 
the  state. 


358  THEORY  OF  LAW 

Examining  the  organs  which  decide  we  find  three 
different  groups.  There  are  first  those  systems  in  which 
the  power  to  decide  is  confided  to  a  special  organ.  That 
organ  may  be  a  single  person  or  a  board.  It  is  called 
unipersonal  when  the  power  of  deciding  is  lodged  in  a 
single  person  even  though  that  person  is  surrounded  with 
agencies  which  co-operate  in  the  manner  above  indicated. 
Thus,  in  an  absolute  monarchy  the  legislative  power  is 
unipersonal  even  though  the  ruler  has  at  his  side  vari- 
ous councils  whose  advice  he  takes.  The  government  is 
collegial  when  it  consists  of  a  combination  of  persons 
who  decide  by  a  majority  of  votes.  The  majority  is 
absolute  if  the  decision  is  by  half  of  all  the  votes  plus 
one.  It  is  called  relative,  on  the  other  hand,  when  the 
decision  is  reached  by  means  of  more  votes  than  any 
competing  proposition  has,  though  less  than  half  of  all. 
It  is  called  a  qualified  majority  if  at  least  a  special  pro- 
portion of  the  votes,  as  two-thirds,  or  three-fourths,  is 
required. 

The  collegial  form  of  government  involves  necessarily 
greater  expenses  and  more  delays,  but  offers  a  guarantee 
of  impartiality  and  is  preferable  from  this  point  of  view. 
The  unipersonal  organization  gives  to  the  institution  the 
greatest  speed  in  acting  upon  different  affairs.  The 
most  important  point  in  selecting  the  form  is  to  fix  the 
responsibility  with  which  the  functionaries  are  charged. 
Such  responsibility  may  depend  upon  the  character  of 
the  function — legislative  or  judicial,  for  instance, — or 
upon  the  form  of  government — absolute  monarchy,  for 
example.  In  these  cases  it  is  necessary  to  obviate  the 
troublesome  consequences  of  lack  of  responsibility  and 
to  repress  the  abuses  which  might  result.  The  collegial 
form  best  answers  these  conditions.  Finally,  the  power 
of  deciding  may  be  given  to  one  or  several,  the  decision 
of  one  being  conditioned  upon  the  assent  of  the  others, 
as  at  Rome  it  was  conferred  upon  the  two  consuls.  In 


SOCIAL  CONDITIONS  359 

our  time,  too,  criminal  jurisdiction  is  given  to  two  boards 
at  the  same  time,  the  judges  and  the  jury.  Between 
these  last,  of  course,  there  is  a  division  of  authority, 
the  jury  passing  on  the  question  of  guilt  and  the  judges 
upon  the  extent  of  the  punishment.  The  legislature, 
also,  is  commonly  separated  into  two  houses.  Sometimes 
organs  which  together  exercise  the  power  of  decision  have 
a  different  organization  so  that  they  may  each  serve  as  a 
check  upon  the  other.  In  this  way  in  some  constitu- 
tional states  matters  of  legislation  are  entrusted  to  par- 
liament and  at  the  same  time  to  the  sole  executive  by 
allowing  him  the  veto. 

Finally,  there  is  the  system  of  several  appeals.  The 
decision  which  is  entrusted  to  one  organ  is  not  neces- 
sarily final,  and  on  the  demand  of  the  persons  or  estab- 
lishments interested  the  determination  can  be  revised  by 
some  other  organ  which  in  relation  to  the  first  occupies 
a  higher  place  in  the  governmental  scale.  The  organ 
of  decision  in  the  first  instance  is,  as  to  this  higher  one, 
merely  a  preparative  organ.  It  renders  an  effective  de- 
cision, and  if  there  is  no  appeal,  that  decision  becomes 
final  and  the  higher  organ  does  not  act.  The  number 
of  tribunals  in  the  series  is  commonly  two  or  three  and 
it  is  especially  in  judicial  institutions  that  this  organiza- 
tion is  met  with. 

Consultive  institutions  are  most  frequently  of  the  col- 
legiate form,  but  when  purely  consultive  have  no  power 
of  decision.  According  to  their  character  they  present 
three  different  types, — first,  the  councils  of  state,  whose 
members  must  have,  above  all,  administrative  experi- 
ence; then,  technical  boards;  and  finally  representative 
bodies  which  include  representatives  of  local  interests  and 
of  corporations  of  all  kinds. 

The  function  of  the  councils  of  state  is  generally  to 
assist  the  organ  charged  with  the  final  power  of  decision 
especially  when  this  latter  is  a  single  person.  The  rep- 


360  THEORY  OP  LAW 

resentative  councils  aid  only  those  organs  which  have  no 
representative  quality  themselves.  The  technical  coun- 
cils are  found  in  connection  with  all  state  organs.  The 
consultive  organs  had  their  widest  development  in  the 
French  Constitution  of  the  year  VIII,  which  applied  the 
rule:  "To  act  is  the  function  of  one  person;  to  delib- 
erate, of  several."  Such  a  system  presents  great  incon- 
veniences. It  does  not  reduce  the  danger  of  arbitrary 
action.  It  does  diminish  the  responsibility  of  the  de- 
ciding body. 

This  observation  has  no  application  to  technical  boards. 
Their  opinions  have,  or  should  have,  a  scientific  value 
which  sets  them  entirely  apart.  The  preparative  bodies 
are  the  bureaux  or  departments,  but  their  organization  is 
of  no  legal  importance. 

Executive  organs  assume  extremely  varied  forms.  The 
most  important  one  is  the  army,  which  is  under  the  im- 
mediate orders  of  the  chief  executive.  But  the  other  in- 
ternal organs  of  the  inner  life  of  the  state  are  numerous. 
Their  organization  is  upon  two  different  systems;  either 
to  each  deciding  organ  there  corresponds  an  executive 
one  or  the  general  executive  power  is  confided  to  one 
and  the  same  body,  as,  for  instance,  the  police.  The 
first  is  the  English  system;  the  other  prevails  generally 
on  the  continent  and  especially  in  Russia. 

Such  are  the  fundamental  principles  of  the  state's  in- 
stitutions. As  for  their  personnel,  it  is  very  different 
according  to  the  phase  of  development  reached  by  the 
nation.  Three  principal  epochs  are  distinguishable,  in  a 
general  way,  in  the  development  of  nations. 

At  the  beginning  there  is  no  general  system  of  regu- 
lating political  organs.  The  task  of  government  at  that 
time  is  very  simple  and  the  people  themselves,  without 
much  intermediary,  perform  it.  The  organ  of  legisla- 
tive power,  the  consultive  functions  and  the  adminis- 
tration of  justice  are  all  confused.  The  people  meet  for 


SOCIAL  CONDITIONS  361 

all  these  purposes  in  general  assembly  and  the  army 
consists  of  the  same  people  combined  for  war.  The 
prince  and  the  military  chiefs  subject  to  him  are  the 
only  distinct  organs  at  this  time,  and  as  yet  are  but 
slightly  distinguished  from  the  mass  of  the  people. 

The  second  epoch  is  that  of  organization  by  classes. 
The  government  of  the  state  gets  into  the  hands  of  a 
separate  class,  the  nobility  for  example.  This  class  holds 
all  political  positions,  some  of  which  become  hereditary. 
Such  an  organization  marks  by  contrast  with  the  former 
an  important  advance.  The  class  specially  charged  with 
the  public  service  participating  in  all  government  action 
acquires,  naturally,  an  increasing  influence  and  capacity 
from  generation  to  generation.  The  transmission  of  these 
duties,  imitation  of  ancestors,  family  tradition,  educa- 
tion directed  from  the  earliest  years  towards  political 
life,  all  this  was  for  the  young  noble  so  much  of  guar- 
antee of  his  political  capacity  and  energy.  His  energy, 
zeal  and  devotion  to  public  affairs  would  go  on  increas- 
ing because,  to  the  ordinary  stimulants  of  interest,  duty, 
and  patriotism,  would  be  presently  added  that  of  class 
and  family  distinction. 

The  organization  into  classes,  however,  could  not  long 
stand  in  the  face  of  general  social  development.  It  car- 
ried in  itself  the  germ  of  its  own  destruction.  In  the  first 
place  functionaries  drawn  exclusively  from  among  mem- 
bers of  one  single  class  of  society  woulcl  represent  not 
merely  the  interests  of  the  state  but  those  of  their  class, 
and  would  surely  provoke  by  their  acts  discontent  among 
those  excluded  from  power.  As  these  latter  became 
stronger  they  would  grasp  some  part  in  the  direction 
of  affairs. 

Then  the  ruin  of  this  type  of  government  was  caused 
also  by  the  very  development  of  the  specialization  which 
the  administrative  function  requires.  So  far  as  division 
of  labor  and  variety  of  function  grows  up  in  the  state, 


362  THEORY    OF    LAW 

the  general  preparation,  on  which  the  class  spirit  depends, 
becomes  insufficient  and  more  and  more  the  requirement 
of  a  special  technical  preparation  becomes  imperative. 
Presently  there  is  formed  a  body  of  individuals  to  whom 
the  state  service  becomes  a  genuine  profession. 

With  the  new  organization  of  government  which  takes 
the  place  of  the  old  two  facts  are  of  special  importance. 
First,  the  tendency  of  influential  members  of  society 
to  enlarge  their  privileges  as  against  the  nobility  and 
subject  the  latter  to  their  control.  Second,  the  forma- 
tion of  a  distinct  class  of  professional  functionaries 
whose  high  position  in  respect  to  power  is  an  unavoid- 
able fact. 

The  task  of  government  in  all  modern  states  requires 
a  technical  preparation.  The  role  of  functionary  in  the 
modern  state  requires  so  much  of  the  individual's  time 
as  to  make  the  state's  service  now  a  real  profession. 
Moreover,  that  the  government  may  not  be  exclusively 
in  the  hands  of  one  class,  it  is  indispensable  to  give  the 
other  members  of  society  some  influence  and  allow  to 
them  also  some  function  in  the  state.  It  is  for  this  last 
reason  that  the  personnel  of  the  different  departments 
of  government  comprehends  two  elements, — first,  a  set  of 
persons  destined  to  the  service  of  the  state  as  to  any 
other  profession;  second,  a  class  of  persons  who  are 
merely  representatives  of  the  interests  of  other  classes 
of  society. 

In  other  words,  in  making  up  the  modern  establish- 
ments of  states,  there  is  a  professional  and  a  representa- 
tive element  both  included.  The  first  is  to  guarantee 
competent  knowledge  and  experience.  The  second  is  to 
serve  as  a  check  upon  routine  and  class  spirit. 

These  two  elements  have  to  do  with  each  of  the  dif- 
ferent organs  of  the  state.  Legislation  and  the  adminis- 
tration of  justice  equally  require  them.  Their  combina- 
tion varies.  Sometimes  they  are  so  wholly  distinct  that 


SOCIAL  CONDITIONS  363 

the  same  function  is  confided  to  two  separate  organs 
each  composed  of  one  of  these  elements.  In  most  con- 
stitutional countries  legislation  belongs  both  to  the  pop- 
ular assemblies  and  the  so-called  "government."  The 
judges  and  the  juries  represent  them  respectively  in  the 
administration  of  justice. 

In  other  cases  these  two  elements  enter  into  organs, 
but  only  one  of  them  is  charged  with  deciding,  the  other 
merely  co-operating  with  the  first.  This  happens  when 
along  with  the  deciding  organ  which  is  professional  there 
is  a  consultive  part  which  is  representative.  It  is  neces- 
sary to  distinguish  the  system  which  organizes  a  separa- 
tion of  these  two  elements  of  the  organ  from  that  in 
which  there  is  a  combination  of  the  two.  As  regards 
an  organ  in  the  form  of  a  board,  this  is  made  up  in  part 
of  persons  appointed  for  professional  character  and  in 
part  of  persons  elected.  In  a  unipersonal  organization 
this  combination  is  realized  if  the  one  individual  unites 
in  himself  a  professional  and  a  representative  character, 
as  takes  place,  for  example,  when  a  functionary,  appointed 
for  an  indefinite  time,  as  a  consequence  is  called  upon  to 
take  part  in  a  local  council  (Prussian  Landrath,  or  Rus- 
sian Chief  of  Division). 


364  THEORY  OF  LAW 


Section  46.     The  Form  of  the  State's  Organization 

ZWEIREV.     The  Main  Classification  of  States. 
KORKUNOV.    Russian  Public  Law,  I.  8th  ed.,   1908.    pp.   100— 
131. 

The  organization  of  public  institutions  offers  a  great 
diversity,  which  has  its  influence  over  the  general  struc- 
ture, of  states.  One  can  always  reduce  this  diversity  to 
some  leading  types.  The  study  of  these  types  is  also 
that  of  the  forms  of  state  organization,  or,  in  other  words, 
of  forms  of  government.  This  study  early  attracted 
learned  attention.  The  oldest  classification  of  govern- 
ments is  that  based  on  the  number  of  those  ruling.  If 
the  supreme  administration  is  in  one  person  the  govern- 
ment is  a  monarchy;  if  in  a  considerable  number,  it  is 
an  aristocracy;  if  in  all,  it  is  a  democracy. 

This  extremely  simple  classification  is  in  Herodotus. 
It  is  still  in  our  time  the  one  with  the  most  partisans 
even  among  the  most  modern  schools,  as  witness  Roscher, 
for  example.  Such  a  classification  offers  meanwhile  some 
serious  defects,  as  Aristotle  already  pointed  out.  These 
defects  appear  in  all  their  force  when  the  extremely  com- 
plex organizations  of  modern  states  come  under  consid- 
eration. 

First  of  all,  who  are  to  be  designated  as  the  rulers? 
If  we  mean  by  this  term  all  those  into  whose  hands  any 
part  of  governing  authority  comes,  so  that  all  others  are 
merely  to  be  regarded  as  co-operating  in  the  government, 
the  term  monarchy  can  only  properly  apply  to  an  abso- 
lute one.  In  a  constitutional  monarchy,  parliament  is 
not  restricted  to  co-operating  towards  a  decision  of  the 
sovereign,  and  it  is  not  from  him  that  it  gets  its  power. 
On  the  contrary,  it  constitutes  an  independent  organ 


SOCIAL  CONDITIONS  365 

which  limits  the  monarch's  power  and  draws  its  own 
from  the  people's  mandate. 

If,  on  the  contrary,  we  include  as  rulers  those  in  whose 
hands  is  placed  not  the  whole  government  in  the  large 
sense  of  the  term,  but  only  the  executive  power,  most 
republics,  since  they  have  in  our  times  usually  a  chief 
at  the  head  of  the  executive,  would  be  included  under 
the  name  of  monarchy.  The  name  of  democracy,  too, 
if  defined  as  government  by  the  whole  people,  is  not 
truthfully  applicable  to  any  existing  state.  Nowhere 
does  the  whole  populace  share  in  the  state's  power. 
Things  presented  themselves  somewhat  differently  in  an- 
tiquity because  then  those  who  were  deprived  of  .rights 
were  usually  deprived  of  them  altogether  and  made  slaves. 
In  defining  the  government  as  that  of  all,  all  free  men 
was  understood.  But  in  the  modern  world  while  every- 
body in  this  sense  is  free,  everybody  does  not,  anywhere, 
partake  in  the  functions  of  public  power.  Even  where 
universal  suffrage,  so  called,  really  exists,  it  is  only  one- 
fourth  of  the  population  which  has  the  right  to  vote  and 
of  these  not  more  than  two-thirds  use  the  right.  Con- 
sequently only  a  sixth  of  the  population  take  part  in 
elections  and  the  choice  is  actually  made  by  a  majority 
of  these;  that  is,  by  something  more  than  a  twelfth  of 
the  whole  population. 

The  number  of  rulers  is  in  general  the  result  of  chance 
and  circumstances.  If  this  is  to  be  taken  as  the  sole 
test  of  classification  it  would  be  necessary  to  say  that 
Russia  under  Peter  the  Great  ceased  to  be  a  monarchy 
and  became  an  aristocratic  republic.  This  error  of  ac- 
cepting the  number  of  rulers  as  the  sole  ground  of  classi- 
fying governments  leads  immediately  to  another  one, 
that  of  seeking  to  find  a  criterion  for  classifying  states 
which  would  serve  to  explain  all  the  differences  between 
one  state  and  another.  Thus  Plato  reduced  the  differ- 
ences in  the  forms  of  government  to  that  between  the 


366  THEORY  OF  LAW 

three  virtues, — sagacity,  courage,  and  temperance,  of 
which  sometimes  one  and  sometimes  another  prevailed 
in  the  state.  Aristotle  counted  as  the  principal  distinc- 
tion among  governments  their  regular  or  irregular  forms, 
counting  as  regular  such  as  subjected  the  personal  inter- 
ests of  their  rulers,  whoever  they  might  be,  to  those  of 
the  state,  and  those  irregular  which  placed  higher  the 
personal  interests  of  the  rulers. 

Montesquieu  specially  undertook  to  exhibit  the  guid- 
ing principle  in  each  case  and  he  distinguishes  several 
principles:  virtue  in  democracy,  moderation  in  aris- 
tocracy, honor  in  monarchy,  and  fear  in  tyranny. 
Heeren  derives  the  distinction  between  forms  of  govern- 
ment from  distinctions  established  between  individuals. 
If  the  subjects  are  slaves  despoiled  of  all  rights  it  is  a 
despotism.  If  individuals  have  only  civil  rights  it  is 
a  monarchy,  and  a  republic  if  the  citizens  have  both 
civil  and  political  rights.  Lorenz,  Stein  and  Mohl  have 
sought  chiefly  to  establish  the  distinctions  between 
governments  upon  their  relations  not  to  the  citizens  but 
to  society. 

All  these  definitions  have  value  for  explaining  the 
state's  activity.  To  characterize  completely  a  state 
there  is  need,  certainly,  to  explain  the  connections  which 
exist  between  that  state  and  the  moral  principles  and 
subjective  rights  of  the  citizens;  but  all  this  serves  only 
to  fix  the  interior  life,  the  social  life  of  the  state,  without 
furnishing  a  basis  for  the  distinctions  of  its  various 
external  forms. 

All  states,  it  is  today  universally  agreed,  may  be  divided 
into  monarchies  and  republics,  but  the  basis  of  this  dis- 
tinction is  not  the  number  but  the  legal  situation  of 
rulers. 

In  the  republic  every  one  who  holds  any  part  or  parcel 
of  authority  has  also  some  responsibility  and  this  is  true 
of  the  humblest  elector  as  well  as  of  the  president  of 


SOCIAL   CONDITIONS  367 

the  republic  himself.  In  the  monarchy,  however,  there 
is  an  irresponsible  organ  of  authority,  the  monarch. 
This  difference  of  responsibility  in  the  first  case,  and 
lack  of  it  in  the  second,  is  the  characteristic  in  their 
functions.  The  difference  is  not  in  the  number  of  per- 
sons exercising  those  functions.  The  President  of  the 
United  States  has  more  power  than  the  King  of  Eng- 
land, but  the  President  is  responsible  to  Congress  and 
so  is  not  a  monarch.  The  King  of  England  on  the  other 
hand  is  not  responsible  and  therefore,  despite  the  nar- 
row limits  of  his  power,  remains  none  the  less  a  mon- 
arch. 

The  character  of  the  state's  organization  cannot  fail 
to  be  modified  by  the  fact  that  a  holder  of  power  which 
he  is  exercising  in  his  own  right  and  not  as  a  state  man- 
datary is  irresponsible.  If  there  is  in  the  state  an  irre- 
sponsible subject,  some  of  the  legal  rules  established 
with  a  view  to  assuring  order  become  to  that  extent  des- 
titute of  sanctions.  They  maintain  a  certain  force  and 
importance  but  they  derive  it,  as  against  such  privilege, 
from  morals  or  usage,  not  from  legal  effect.  So  in  a 
republic  the  legal  organization  of  the  state  is  more  thor- 
oughly wrought  out  than  in  a  monarchy.  But  on  the 
other  side,  the  personification  of  the  state's  authority  in 
the  monarch  is  for  the  advantage,  as  Stein  points  out, 
of  the  state's  independence  in  the  exercise  of  its  authority 
over  powerful  social  classes. 

These  two  conditions  have  compelled  the  recognition 
of  the  difference  between  monarchy  and  republic  as  a 
fundamental  one  among  the  forms  of  the  state's  organi- 
zation. It  is  necessary  to  add  further  that  the  chief  of 
the  state,  called  upon  to  represent  it  at  home  and  abroad 
participates  more  or  less  in  all  that  is  done  in  the  state's 
name,  in  legislation,  justice,  or  administration.  This  is 
why  the  independence  of  the  monarch's  power  and  his 
irresponsibility  have  a  certain  influence  upon  all  the 


368  THEORY  OF  LAW 

manifestations  of  the  state's  power.  The  monarchial 
principle  requires  that  nothing  be  done  contrary  to 
or  even  aside  from  the  monarch's  will.  In  his  name 
justice  is  rendered.  He  appoints  all  the  high  function- 
aries of  government.  To  him  belongs  the  right  of  veto 
and  so  of  deciding  upon  the  law  and  its  promulgation. 
All  these  powers  the  president,  too,  has,  but  the  dif- 
ference is  enormous.  In  the  first  case  the  laws  are 
promulgated  by  an  irresponsible  sovereign,  in  the  sec- 
ond by  a  functionary  responsible  for  his  acts  before  the 
people. 

From  the  monarch's  irresponsibility  results  finally  the 
essential  peculiarities  of  the  monarchical  government. 
It  is  possible,  and  such  examples  could  be  cited,  that  the 
government  should  be  in  the  hands  of  several  irrespon- 
sible individuals,  but  this  is  exceptional.  The  exercise 
of  an  irresponsible  power  is  hard  to  reconcile  with  the 
division  of  that  power  into  several  hands.  In  a  mon- 
archy, therefore,  we  see  generally  that  all  manifestations 
of  power  tend  towards  the  unipersonal  form. 

The  republic,  on  the  contrary,  is  better  suited  to  a 
collegiate  organization  of  government.  It  is  better  suited 
to  the  republican  principle,  which  is  always  to  subject 
more  and  more  the  powers  of  government  to  the  people; 
and,  so  far  as  modern  republics  show  a  preference  for 
unipersonal  forms,  it  is  because  of  the  influence  of  mon- 
archical ideas.  Where,  as  in  Switzerland,  a  republican 
organization  has  long  existed,  it  is  under  the  collegiate 
form. 

In  the  same  way  hereditary  power  is  conformable  to 
monarchy  and  elective  power  to  a  republic.  Only  hered- 
itary power  is  completely  independent.  Elective  mon- 
archies have  always  shown  a  transitory  form,  and  today 
have  all  disappeared.  Even  in  these  elective  monarchies 
the  power  of  the  monarch  was  always  for  life,  and  not 
for  a  limited  time  as  in  republics,  and  this  because  such 


SOCIAL  CONDITIONS  369 

limited  power  leads  to  a  fatal  dependence  on  the  citizens. 
So,  too,  in  republics  the  president  is  always  elected  for 
a  definite  time  and  usually  a  short  one.  The  most  com- 
mon term  is  ten  years.  This  was  the  term  under  the 
French  constitution  of  the  year  eight  for  the  consuls. 
The  French  president  now  is  elected  for  seven  years. 
So,  then,  irresponsibility  of  the  monarch,  who  governs 
without  being  subjected  to  another  organ,  and  by  his 
own  power,  constitutes  the  essential  distinctive  mark  of  a 
monarchical  organization  of  government,  and  establishes 
the  fundamental  distinction  between  it  and  the  repub- 
lican form.  But  both  the  monarchical  and  the  re- 
publican principle  may  receive  a  more  or  less  complete 
application. 

Monarchies  can  assume  different  forms  according  as 
the  state's  authority  is  centralized  in  the  monarch's 
hands  and  all  the  organs  of  government  act  only  by  his 
orders,  or,  on  the  contrary,  according  as  there  are  other 
agencies  outside  of  him,  for  example  the  popular  repre- 
sentatives, which  retain  some  portion  of  public  power. 
In  the  first  case  when  all  the  authority  is  in  the  mon- 
arch's hands  it  is  an  absolute  monarchy,  and  is  a  con- 
stitutional monarchy  when  the  authority  is  shared  by 
the  national  representatives. 

The  multiplicity  of  forms  of  republican  government 
cannot  rest  merely  on  different  combinations  of  republi- 
can and  monarchical  principles.  If  there  is  monarchical 
power,  however  limited  it  may  be,  there  is  no  place  for 
a  republic.  Republics,  however,  are  distinguished  ac- 
cording to  the  degree,  more  or  less  advanced,  of  the 
realization  of  the  republican  principle,  according  to  the 
greater  or  less  subordination  of  all  the  organs  of  author- 
ity to  the  will  of  the  people.  The  greater  the  partici- 
pation of  the  people  in  public  power,  the  less  independ- 
ent are  the  institutions  and  mandataries  of  the  people. 
A  distinction  is  made  between  true  republics  and  repre- 


370  THEORY  OF  LAW 

sentative  republics.  The  first  is  an  organization  where 
the  people  participate  directly  in  the  legislative  function. 
A  representative  republic,  on  the  contrary,  is  one  in 
which  this  right  does  not  belong  directly  to  the  -people 
but  is  confided  to  representatives,  and  the  people  have 
only  the  right  of  naming  these. 


SOCIAL  CONDITIONS  371 

Section  47.    Power  and  Law 
IHERING.     Zweck  im  Recht.     I,  1884.     pp.  176  ff. 

Whatever  may  be  the  state's  organization,  whatever 
powers  it  may  have,  the  human  conscience  tends  always 
to  subject  this  power  to  legal  rules.  To  the  interests  of 
power  are  necessarily  opposed  the  principles  of  law.  In 
submitting  to  the  authority  of  the  state  the  citizen 
requires  of  the  organs  of  power  a  similar  submission  to 
law,  because  to  whatever  height  the  interest  of  author- 
ity of  order  may  rise,  it  can  never  wholly  annihilate  and 
engulf  men's  other  interests.  In  centralizing  force  into 
its  hands  the  state  thereby  assures  to  all  its  citizens  good 
order  in  all  their  mutual  relations.  In  defending  its  in- 
ternational independence  and  external  power  the  state 
assures  at  the  same  time  the  preservation  and  develop- 
ment of  national  *  culture  and  the  social  life  of  the 
country. 

But  however  important  the  state's  function  may  be  in 
thus  assuring  the  preservation  and  development  of  so- 
ciety there  is  a  throng  of  other  human  interests  which 
are  liable  to  fall  into  conflict  with  those  of  the  state. 
The  individual  who  regards  himself  as  his  own  supreme 
end  cannot  consent  to  the  sacrifice  of  all  his  interests 
to  sustain  order  and  peace  which  are  in  his  eyes  only 
a  means  for  reaching  that  supreme  end.  For  this  reason 
he  opposes,  altogether  naturally,  to  the  interests  of  power 
his  own  interests,  and  guards  and  defends  them  against 
the  grasp  of  the  state.  This  is  the  origin  of  those  legal 
rules  which  delimit  the  interests  liable  to  fall  into  con- 
flict, the  state's  on  the  one  hand  and  the  individual's 
on  the  other.  This  limitation,  applied  to  the  rights  of 
the  state,  goes  on  developing  increasingly,  keeping  pace 


372  THEORY  OF  LAW 

with  social  development  itself,  and  has  appeared  at  all 
epochs  of  history.  No  government  denies  the  existence 
of  these  legal  obligations  and  the  greater  the  political 
development  of  the  society  the  greater  also  is  the  circle 
of  these  obligations.  But  how  explain  this  limitation 
applied  to  power  by  law? 

For  the  partisans  of  natural  law  this  question  received 
one  of  the  simplest  of  solutions.  Certain  rights,  said 
they,  are  inherent  in  the  individual,  in  his  quality  as  a 
human  being.  They  are  independent  of  the  state,  exist- 
ing outside  of  it,  absolute  and  inalienable.  By  conse- 
quence they  escape  all  action  of  authority  itself.  It  is 
these  rights  which  form  the  basis  of  the  limitations  upon 
political  power.  The  existence  of  these  limits  is  so  much 
the  more  natural,  as  the  authority  of  the  state  rests  upon 
the  free  agreement  of  individuals. 

But  the  question  cannot  today,  when  the  doctrines  of 
the  school  of  natural  law  are  no  longer  admitted,  receive 
the  same  solution.  Today,  only  the  existence  of  posi- 
tive law  created  by  the  historic  development  of  human 
societies  is  accepted,  and  in  it  the  authority  of  the  state 
constitutes  one  of  the  most  important  factors.  How  then 
explain  the  birth  and  development  of  law  in  a  society 
united  precisely  by  a  common  obedience  to  the  state? 
How  could  this  law  create  the  rules  which  limit  the  func- 
tions and  powers  of  the  state  itself? 

In  the  theory  which  identifies  the  power  of  the  state 
with  its  will,  dominating  all,  the  restrictions  which  the 
law  applies  to  this  power  can  be  explained  only  by  the 
considerations  of  opportunity,  or  by  the  idea  of  the  ends 
of  the  state.  If  power  is  the  will  which  dominates  all 
and  there  is  no  natural  law  to  limit  this  will,  the  restric- 
tions imposed  by  law  upon  the  state's  activity  can  be 
explained  only  as  limitations  to  which  that  dominating 
will  consents  with  a  view  to  some  personal  end.  It  is 
the  autolimitation  of  the  state  which  is  the  source  of 


SOCIAL  CONDITIONS  373 

constitutional  restrictions.     It  is  thus  that  Ihering  ex- 
plains the  birth  of  this  law.1 

For  Ihering,  all  law  in  a  general  way  is  created  exclu- 
sively by  the  state's  authority  and  is  merely  the  product 
of  the  state's  power.  He  shows  first  of  all  that  conform- 
ity to  law  is  the  first  condition  of  political  force.  Phys- 
ical force  can  never  take  the  place  of  one  acting  accord- 
ing to  reason.  The  best  politics,  Ihering  concludes, 
is  conformity  to  law.  This  conception  is  very  simple. 
In  fact  the  state's  power  in  becoming  less  extended, 
in  limiting  itself  in  order  to  act  conformably  to  law, 
only  strengthens  itself;  because  this  restriction  makes 
the  sentiment  of  law  so  much  stronger  in  society.  There 
is  no  room  for  doubt  that  the  chief  support  of  the  state's 
power  is  only  a  strongly  developed  sentiment  in  favor 
of  legality.  Power  in  a  state  can  never  be  supported 
solely  upon  physical  force,  because  the  ruling  portion 
of  a  state  is  always  a  minority  of  the  society.  Conse- 
quently this  feeling  in  favor  of  legality  is  so  important 
a  support.  It  leads  the  citizens  to  discharge  the  legis- 
lature's demands  and  guarantees  the  enforcement  of  the 
law  by  them,  even  in  cases  where  such  enforcement 
conflicts  with  their  special  interests.  We  can  under- 
stand that  this  sentiment  should  be  the  principal  force 
in  government,  for  it  induces  the  voluntary  submission  • 
of  individuals  and  restrains  the  power  of  the  state  within 
fixed  limits;  for  despotic  power  is  one  of  the  leading 
hindrances  to  the  development  of  the  sentiment  of  re- 
spect for  law.  This  sentiment  makes  necessary  for  all 
a  rigorous  observation  of  the  law,  above  all  for  those 
charged  with  power,  and  particularly  for  the  organs  of 
the  government. 

1  Die  Gewalt  gelangt  zum  Recht  nicht  als  zu  etwas  ihr  Fremden,  das  sie  von 
ausserhalff  vom  Rechtsgefuhl,  entlehnen  und  nicht  als  zu  etwas  Hoheren  dem 
sie  im  Gefiihl  ihren  Inferioritat  sich  unterordnen  musste,  sondern  sie  treibt 
das  Recht  als  Maas  ihrer  selbst  aus  sich  heraus — das  Recht  als  Politik  der 
Gewalt. 


374  THEORY  OF  LAW 

At  the  side  of  this  consideration  which  urges  power 
to  act  in  conformity  with  the  laws,  which  assign  limits 
to  its  freedom  of  action,  another  at  the  same  time  presses 
it  towards  the  same  result;  it  is  the  idea  that  a  regu- 
lar organization  is  the  condition  for  successful  discharge 
of  the  state's  functions.  Regular  organization  effects  in- 
deed a  great  economy  of  force  and  would  seem,  also,  to 
be  one  of  the  bases  of  the  state's  power.  But  such  a 
condition  can  be  maintained  only  if  the  most  rigorous 
equality  is  observed  among  the  organs  of  power. 

Thus,  according  to  Ihering,  there  are  two  reasons 
which  explain  the  self-limitation  of  the  state's  power: 
first,  because  in  thus  limiting  itself  it  strengthens  the 
sentiment  of  legality  which  is  the  principal  source  from 
which  it  draws  its  own  strength;  and  then,  because  legal 
rules  being  recognized  as  obligatory,  not  only  by  the 
citizens  but  by  the  organs  of  power  as  well,  the  force 
of  the  state  thereby  gains  a  regular  organization  and 
effects  an  economy  of  strength. 

Ihering's  suggestions  evidently  contain  a  large  part  of 
the  truth.  If  the  representatives  of  power  are  well  ad- 
vised and  understand  their  situation  they  will  assuredly 
limit  their  activity  with  a  view  to  their  personal  inter- 
est and  in  order  to  consolidate  their  authority.  But  all 
this  does  not  yet  explain  how  all  the  limitations  imposed 
upon  power  for  the  juridical  organization  of  the  state 
are  consequences  of  a  conscious  self-limitation  of  its 
power  established  solely  for  its  own  interest.  This  would, 
first  of  all,  contradict  Ihering's  own  doctrine  according 
to  which  the  law's  development  does  but  follow  as  a 
result  of  the  conflict  of  interests.  If  law  is  such  a  result 
of  conflicting  interests  there  cannot  be  a  simple  self- 
limitation  set  up  by  power.  The  history  of  the  devel- 
opment of  constitutional  government  shows,  in  fact,  that 
it  is  very  rarely  that  the  government  consents  volun- 
tarily to  submit  to  the  restraint  of  law. 


SOCIAL  CONDITIONS  375 

In  most  cases  the  restraints  upon  political  power,  ap- 
plied by  law,  are  the  result  of  an  embittered  conflict 
between  different  elements  of  the  society.  These  re- 
strictions are  not  in  all  cases  imposed  solely  because  of 
considerations  of  advantage  and,  consequently,  they  do 
not  present  an  optional  but  an  obligatory  character,  as 
a  result  of  being  established  independently  of  the  opin- 
ions of  the  different  organs  of  power.  Our  conception 
of  political  power,  looking  at  it,  not  as  a  force  which 
has  its  source  in  the  will  of  the  government,  but  rather 
as  one  arising  from  the  feeling  of  dependence  on  the  part 
of  the  subjects,  furnishes  a  more  satisfactory  explanation 
of  the  law's  control  over  the  state's  power.  It  explains 
this  restriction  as  an  objective  fact  quite  independent  of 
any  calculations  of  advantage  on  the  part  of  the  organs 
of  power  themselves. 

If  political  power  rests  upon  the  consciousness  which 
the  subjects  have  of  their  dependence  upon  the  state, 
this  is  sufficient  to  determine  the  nature  of  the  acts  of 
power  and  the  conditions  of  their  realization.  These 
acts  cannot  be  determined  merely  by  the  will  of  the 
rulers.  For  an  organ  of  power  to  draw  its  strength  from 
the  notion  of  dependence  with  regard  to  the  state  with 
which  the  citizens  are  penetrated,  the  acts  of  that  organ 
must  have  a  certain  harmony  with  the  ideas  held  by  the 
citizens  as  to  their  relations  to  law  and  to  individual 
and  social  freedom.  The  power  of  the  state  exists  only 
to  the  extent  that  it  is  accepted  by  the  consciousness  of 
the  citizens,  and  for  this  reason  the  notions  which  in- 
dividuals have  as  to  their  own  freedom  and  social  liberty 
produce  a  corresponding  restriction  upon  the  state's  power. 
Thus,  the  limitation  of  power  by  law  arises  not  only  from 
well-advised  representatives  of  the  state's  power  limiting 
it  by  the  rights  of  the  citizens,  but  also  and  especially 
from  the  fact  that  the  idea  which  the  citizens  have  of 
their  dependence  upon  the  state  is  never  unlimited,  and 


376  THEORY  OP  LAW 

with  the  development  of  social  life,  with  the  creation 
of  a  throng  of  other  societies  at  the  side  of  the  state 
and  with  the  growth  of  international  relations  this  feel- 
ing of  dependence  on  the  state  becomes  more  and  more 
restricted. 

The  power  which  the  state  has  over  us,  and  the  limi- 
tations applied  to  that  power  by  law,  have  a  common 
basis,  which  is  the  notion  which  we  have  of  our  depend- 
ence upon  the  state,  and  also  the  consciousness  which  we 
have  that  there  is  a  whole  category  of  interests  opposed  to 
the  interests  of  power  and  that  they  require  that  an  as- 
certained limitation  be  applied  to  the  state's  activity. 


SOCIAL  CONDITIONS  377 


Section  48.     Combinations  of  Governmental  Powers 

VOROSHILOV.     The  Division  of  Powers,  1874. 
FUZIER-HERMAN.     La  Separation  des  Pouvoirs. 
KORKUNOV.     Decrees  and  Legislation,  1894,  pp.  193,  227. 

Men  do  not  recognize  themselves  as  subjected  to  the 
state  in  any  unlimited  and  absolute  fashion,  and  this  is 
why  in  accepting  the  necessity  of  such  subordination 
they  recognize  at  the  same  time  that  the  organs  of  power 
are  also  obliged  to  conform  to  legal  rules  which  regulate 
the  relations  between  the  interests  of  power  and  those  of 
individuals. 

Such  is  the  general  and  essential  basis  on  which  rests 
the  limitation  applied  by  law  to  the  state's  power.  But 
even  in  a  state  of  small  extent  there  are  so  many  and 
such  complex  institutions  that  this  notion  alone  of  the 
necessary  existence  of  such  limitations  is  not  sufficient 
to  secure  that  all  the  acts  of  power  shall  conform  to 
legal  requirements.  In  addition  to  this  the  organs  of 
power  must  be  disposed  in  such  a  way  as  to  make  diffi- 
cult, if  not  impossible,  encroachments  upon  the  law's 
domain.  It  is  only  in  our  time,  with  our  numerous 
political  theories  as  to  the  state  and  the  individual,  that 
this  question  has  been  studied. 

Montesquieu,  in  his  famous  theory  of  the  separation 
of  the  powers,  indicates  such  a  separation  as  the  only 
means  for  the  guaranteeing  of  liberty.  This  theory  is 
found  in  Book  XI  of  his  L'esprit  des  Lois,  1748,  which 
has  for  a  title,  Of  Laws  with  Regard  to  Political  Liberty 
Considered  in  Relation  to  the  Constitution. 

The  different  states,  says  Montesquieu,  pursue  dif- 
ferent ends.  Rome  pursued  the  augmentation  of  her 
territory,  Sparta,  war;  Judea  was  wholly  devoted  to 
religion,  Marseilles  to  commerce,  China  to  peace,  and 


378  THEORY  OF  LAW 

Rhodes  to  navigation.  Savage  peoples  still  seek  natural 
liberty.  Despotic  states  are  given  up  to  the  sovereign's 
will.  The  monarchy  seeks  glory.  Poland  sought  inde- 
pendence for  each  citizen  and  ended  in  general  servitude. 
Finally  there  is  one  people  all  whose  efforts  turn  towards 
the  single  end  of  political  liberty.  That  people  is  the 
English.  Their  organization  certainly  comes  the  nearest 
to  liberty. 

In  the  whole  state  there  are  three  powers, — first,  the 
legislative;  second,  the  executive  as  to  international  re- 
lations; third,  the  executive  as  to  private  law  relations. 
The  first  promulgated  the  laws  whether  transitory  or 
territorial;  the  second  made  war  and  peace,  sent  am- 
bassadors and  repelled  invasions;  and  the  third  pun- 
shed  crimes  and  executed  legal  process, — was  the  judi- 
cial power. 

If  the  same  individual  or  institution  united  at  the 
same  time  legislative  and  executive  powers,  liberty 
would  no  longer  remain,  for  it  was  to  be  feared  that  the 
same  person  would  proclaim  tyrannical  laws  and  then 
execute  them  tyranically.  Liberty  would  no  longer  exist 
if  the  judicial  power  were  not  separate  from  the  legis- 
lative and  executive;  for  then,  laws  over  life  and  liberty 
would  be  arbitrary  because  the  judge  would  be  at  the 
same  time  the  legislator.  If  the  judicial  were  combined 
with  the  executive  the  judge  would  readily  become  an 
oppressor. 

In  fine,  all  liberty  would  disappear  if  the  three  powers 
fell  into  the  hands  of  the  same  individual  so  that  the 
same  person  should  hold  all  three.  Such  a  government 
would  have  as  complete  a  power  of  executing  the  laws 
as  of  making  them.  It  could  ruin  the  state  at  pleasure 
by  its  general  dispositions  and  pursue  and  condemn  each 
citizen  by  its  special  judgments. 

All  those  who  have  power  seek  to  abuse  it.  They 
seek  always  its  increase  so  far  as  possible.  To  avoid 


SOCIAL  CONDITIONS  379 

arbitrariness  it  is  necessary  to  confide  the  exercise  of 
public  authority  to  several  powers  so  that  one  shall  serve 
as  a  check  upon  the  other.  The  judicial  power  ought 
not  to  be  given  to  a  permanent  body  but  to  be  left  to 
chosen  individuals  elected  by  the  people  to  hold  such  a 
position  for  a  short  time. 

In  this  way  this  terrible  power  not  being  given  to  a 
class  nor  to  a  given  profession  would  become  like  some- 
thing invisible,  like  zero.  It  would  not  be  the  judges 
which  would  be  before  the  mind;  one  would  look  to 
the  judgment  and  not  to  the  judges.  The  other  two 
powers,  on  the  other  hand,  can  be  given  to  permanent 
bodies  since  they  are  not  in  direct  relations  with  indi- 
viduals. 

In  a  free  state  every  man  ought  to  govern  himself, 
and,  by  consequence,  the  legislative  power  should  belong 
to  the  whole  people;  but  in  the  great  states  this  is  an 
impossibility.  Even  in  small  ones  this  causes  too  much 
inconvenience.  The  people,  therefore,  must  act  by  rep- 
resentatives. 

In  every  state  some  men  are  distinguished  by  birth, 
by  wealth  or  by  glory.  If  they  are  confused  with  the 
mass  of  the  people  and  have  like  the  rest  only  the  author- 
ity of  their  vote,  liberty  would  be  slavery  for  them  and 
they  would  have  no  interest  to  defend  it.  Their  partic- 
ipation in  the  legislative  power  ought  to  be  propor- 
tional to  the  prerogatives  which  they  have  in  the  state; 
but  they  will  be  so  only  if  they  form  a  distinct  chamber 
possessing  the  right  to  veto  the  conclusions  reached  by 
the  house  of  representatives,  and  this  latter  should  have 
the  like  power  over  the  conclusions  of  the  other  house. 

So  the  legislative  power  should  be  confided  to  two 
separate  houses,  the  house  of  lords  and  the  representa- 
tives of  the  people.  This  organization  presents  another 
advantage,  also.  Since  the  judicial  having  no  perma- 
nent representative  can  be  considered  as  null  there  would 


380  THEORY   OF   LAW 

be  left  only  the  two,  the  executive  and  legislative  powers ; 
and  these  two  have  need  of  a  third,  a  moderating  power. 
The  house  of  lords  can  fill  this  place,  and  the  executive 
power  be  confided  to  the  monarch ;  for  this  power  requires 
prompt  action  and  is  better  confided  to  one  than  to 
several. 

Montesquieu's  theory  very  quickly  became  popular. 
It  received  many  applications  and  served  as  chief  director 
for  the  American  and  European  constitutions  of  the  end 
of  the  XVIII  and  beginning  of  the  XIX  centuries.  But 
presently  the  accuracy  of  the  theory  began  to  be  doubted. 
A  more  profound  study  of  the  English  constitution  showed 
that  this  rigorous  separation  of  the  three  powers  which 
Montesquieu  thought  he  had  found  in  it  did  not  in 
reality  exist  there. 

The  English  parliament  is  not  in  reality  limited  to 
legislative  functions.  It  extends  its  influence  over  every 
part  of  the  government. 

Different  attempts  have  been  made  to  correct  Montes- 
quieu's doctrine,  and  among  these  ought  to  be  cited  those 
of  Benjamin  Constant  and  of  Hegel.  Constant  thought 
that  only  the  ministers  had  executive  power  and  that  the 
king  had  none,  but  only  a  moderating  power.1 

The  king  occupies  a  peculiar  place  above  all  parties 
and  has  no  other  interest  than  that  of  maintaining  order 
and  liberty  equally  for  all.  The  monarch's  lofty  situa- 
tion ought  to  inspire  him  with  an  ardent  desire  for  peace. 
His  place,  one  might  say,  is  above  human  passions  and 
the  chef-d'auwe  of  the  political  organization  consists  pre-' 
cisely  in  this,  that  amid  the  discords  and  above  them 
there  is  created  an  inviolable  sphere  of  peace,  of  gran- 
deur and  of  impartiality  which  permits  all  quarrels  to 
end  of  themselves  or  else  stops  them  in  time  by  legal 
means.  If  the  danger  is  caused  by  the  ministers  the 
king  has  the  right  to  dismiss  them.  If  the  house  of 

1  Benj.  Constant    Principes  de  Politiqae,  1875.    Chap.  II. 


SOCIAL  CONDITIONS  381 

lords  becomes  a  menace  by  an  obstinate  resistance,  the 
king  may  name  new  peers.  If  it  is  the  house  of  com- 
mons, he  may  dissolve  it.  Finally,  against  injustice  per- 
petrated by  the  judiciary  he  may  interpose  his  power  of 
pardon. 

Hegel,  like  Benjamin  Constant,  regards  the  king  as  a 
distinct  power  and  believes  that  the  judiciary  and  ex- 
ecutive are  only  branches  of  one  power.  He  distin- 
guishes only  two  powers, — aside  from  the  king's,  the 
power  of  determining  general  principles  or  legislative 
power  of  bringing  particular  cases  under  a  general  rule, 
a  power  of  government  which  is  exercised  at  once  in 
judicial  and  executive  administration.  These  different 
attempts  to  modify  Montesquieu's  theory  can  hardly  be 
accepted. 

First  of  all  the  joining  into  one  power  that  of  the 
judiciary  and  the  legislature  cannot  be  accepted.  The 
historic  development  of  the  social  life  furnishes  us  with 
the  proof  that  the  judiciary  cannot  be  considered  as 
merely  a  special  branch  of  the  executive  power.  It  sep- 
arates from  the  general  executive  before  the  legislative 
power  itself  does,  and  one  should  rather  consider,  plac- 
ing himself  at  the  historical  point  of  view,  the  executive 
and  legislative  as  two  branches  of  a  unique  power  of 
government.  The  delimitation  between  the  legislative 
and  the  executive  functions  is  much  less  rigorous  than 
that  between  the  judiciary  and  the  other  two.  The 
legislative  power  constantly  needs  to  resort  to  the  execu- 
tive to  carry  out  its  enactments.  The  judiciary  scarcely 
ever  experiences  such  a  necessity. 

The  very  character  of  the  functions  offers  more  re- 
semblance between  executive  and  legislative  than  be- 
tween the  former  and  the  judiciary.  Legislation  and 
the  carrying  of  it  into  effect  both  look  to  the  future. 
Both  are  seeking  to  set  up  something  new  and  assume  a 
creative  character.  The  judiciary,  on  the  contrary,  plays 


382  THEORY  OF  LAW 

a  part  that  has  to  do  with  the  past.  It  brings  forth 
nothing  new.  It  merely  protects  existing  rights.  Its 
activity  is  essentially  conservative.  The  administration 
of  justice  is  guided  in  its  activity  solely  by  the  prin- 
ciples of  law.  Legislation  and  the  executive  power  on 
the  other  hand  are  guided  principally  by  views  of  ad- 
vantage, by  opportunism.  The  law  serves  only  as  an 
external  limit  and  not  as  an  internal  principle  to  guide 
their  activity. 

This  distinction  in  functions  exercises  also  a  certain 
influence  over  the  organization  of  the  institutions  charged 
with  performing  them.  The  organization  of  legislative 
and  of  executive  institutions  present  much  more  resem- 
blance to  each  other  than  do  those  of  the  judiciary  and 
the  executive  compared  as  a  whole.  Judicial  institutions 
rest  entirely  on  the  principle  of  their  independence  as 
regards  both  society  and  government.  It  is,  in  fact,  on 
this  condition  alone  that  justice  can  be  freely  admin- 
istered and  the  principles  of  law  applied.  The  organiza- 
tion of  the  legislative  and  executive  institutions  rest  on 
different  principles.  The  national  representation  and 
local  autonomy  subject  them  constantly  to  the  action  of 
society.  Ministerial  responsibility  subordinates  execu- 
tive power  to  the  legislature.  Finally,  the  whole  organ- 
ization of  executive  institutions  rests  upon  the  principle 
of  monarchic  control  of  different  administrative  organs. 
The  lower  power  acts  always  in  accordance  with  indica- 
tions from  above.  Judicial  institutions  on  the  contrary, 
even  in  courts  of  first  instance,  act  independently  and 
upon  no  one's  orders. 

Judicial  power  offers  some  characteristics  so  distinct 
that  a  special  science  has  been  formed  whose  subject  of 
study  is  judicial  procedure  and  organization.  The  study 
of  the  legislative  and  of  the  executive  departments  of  gov- 
ernment on  the  contrary  have  always  gone  together  and 
have  constituted  one  science,  that  of  constitutional  law. 


SOCIAL  CONDITIONS  383 

To  complete  Montesquieu's  theory  by  adding  to  it  a 
special  moderating  power  is  almost  equivalent  to  deny- 
ing his  theory  absolutely,  so  far  as  he  proposes  to  accom- 
plish this  ''moderation"  by  distributing  the  state's 
powers  and  functions  among  different  institutions. 
Montesquieu  affirms  that  it  is  precisely  this  distribution 
of  powers  which  safeguards  liberty  without  disturbing 
the  harmony  of  social  relations.  There  is,  then,  accord- 
ing to  him  no  need  of  a  special  tempering  function  to 
unite  the  others.  Harmony  among  political  powers 
according  to  Montesquieu  is  the  result  of  proper 
distribution  among  the  different  institutions,  and  to 
ask  if  a  special  moderating  function  among  them  is 
needful  is  equivalent  to  asking  whether  his  theory  is 
good  or  bad. 

Since  Montesquieu's  time  it  has  been  quite  the  habit 
to  teach  that  the  separation  of  the  powers,  the  distribu- 
tion of  the  functions  which  make  up  the  public  power 
among  several  different  holders,  really  constitutes  the 
surest  guarantee  of  the  individual's  freedom. 

Montesquieu  already  gave  to  his  theory  a  categorical 
formula  by  declaring  that  only  the  distribution  of  these 
powers  in  accordance  with  his  principles  could  assure 
liberty.  His  successors  have  gone  farther.  Placing  this 
separation  upon  a  philosophic  basis,  while  he  only  gave  it 
a  concrete  expression,  they  declare  it  absolutely  necessary. 

Such  attempts  to  split  up  the  powers  are  false.  The 
elements  of  public  power  cannot  be  reduced  to  a  single 
absolute  unchangeable  principle.  The  elements  out  of 
which  it  is  formed  are  developed  little  by  little  along 
with  the  social  life  itself.  They  are  not  the  result  of 
the  dismemberment  of  an  abstract  notion  of  power, 
but  they  constitute  the  differentiation  in  the  manifes- 
tations of  that  power  as  concrete  phenomena.  The 
three  powers  as  Montesquieu  distinguishes  them,  are 
not  an  indispensable  attribute  of  every  state. 


384  THEORY  OF  LAW 

At  the  time  when  the  whole  legal  life  was  controlled 
by  custom,  there  was  no  legislative  power.  The  state 
did  not  fulfill  that  function.  The  legislative  power  only 
appeared  later  with  the  state's  development.  But  the 
development  of  the  state  did  not  stop  with  the  appear- 
ance of  the  three  functions  of  power.  The  greater  the 
state's  activity,  the  more  complicated  its  role,  the  more 
varied,  also,  are  the  forms  of  its  power,  its  elements, 
and  their  functions.  Once  the  power  of  the  state  did  not 
speak  through  general  rules.  Today  it  is  no  longer  sat- 
isfied with  one  form  of  generalization.  Several  are  nec- 
essary for  its  use  and  it  employs  constitutions,  legis- 
lation and  general  decrees  and  administrative  rules. 

If  with  the  development  of  the  state  the  functions 
of  the  state's  power  also  develop,  we  cannot  assuredly 
make  the  guarantee  of  liberty  depend  upon  his  par- 
ticular division  of  the  functions  of  power.  Liberty  is 
no  longer  guaranteed  by  a  special  distribution  alone 
of  power  among  these  functions,  but  by  a  general  dis- 
tribution among  different  institutions.  The  distribution 
may  vary  from  moment  to  moment. 

These  are  not  rectifications  of  detail;  but,  on  the  con- 
trary, this  general  observation  prevents  the  theory  of 
Montesquieu  from  becoming  one  capable  of  truly  ex- 
plaining all  the  forms  for  the  distribution  of  functions 
of  power  among  different  organs. 

Montesquieu  presents  his  theory  as  if  the  reciprocal 
limitation  of  organs  of  power  were  only  possible  if  there 
is  a  distribution  among  them  of  different  functions  of 
power,  and  he  takes  no  account  of  other  functions  than 
executive,  legislative,  and  judiciary.  At  the  start  it 
cannot  be  admitted  that  this  reciprocal  check  of  the 
different  organs  of  power  is  truly  the  result  of  a  wise 
distribution  of  the  functions  of  government  among  its 
organs  for  guaranteeing  freedom.  Why,  indeed,  should 
the  mutual  dependence  and  moderation  of  each  other 


SOCIAL  CONDITIONS  385 

on  the  part  of  these  organs  assure  liberty?  Because, 
says  Montesquieu,  all  holders  of  power  are  tempted 
to  abuse  it.  That  it  may  not  be  abused  one  holder 
must  be  able  to  check  another.  But  the  abuse  of  power 
consists  in  an  organ's  performing  its  functions  not  in 
the  general  interest  of  the  whole  state,  but  in  some  per- 
sonal interest.  With  such  a  discharge  of  functions  of 
power,  dependence  upon  the  state  turns  into  a  per- 
sonal dependence  upon  the  organs  of  power,  and  the 
citizens'  liberty  is  no  longer  respected,  since  it  depends 
not  upon  objective  conditions  of  the  social  life,  but 
upon  subjective  considerations  in  the  mind  of  the  per- 
son controlling  the  organ  of  power  which  uses  for  his 
benefit  all  the  state's  force. 

It  is,  of  course,  impossible  to  assure  the  entire  dis- 
appearance of  such  abuses.  Power  can  only  be  exer- 
cised through  organs  composed  of  men  who  are  subject 
to  their  own  passions,  their  own  aspirations,  their  own 
interests,  real  or  imaginary.  Collision  between  personal 
interests,  therefore,  and  the  state's  are  always  inevitable 
and  it  is  always  to  be  feared  that  personal  interests, 
being  the  warmer  and  the  more  directly  effective  upon 
men,  will  overcome  the  more  remote  and  abstract  inter- 
ests of  the  state. 

It  is  impossible  to  change  human  nature  and  uproot 
from  the  human  soul  its  passions  and  interests.  Some 
guarantee,  then,  of  the  state's  general  interests  by 
means  of  such  an  organization  that  the  different  ambi- 
tions of  men  shall  themselves  neutralize  each  other,  is 
needed.  This  object  will  be  in  a  degree  obtained  if  the 
different  functions  of  power  are  entrusted,  not  to  a  single 
person,  but  to  several,  in  such  a  way  that  each  impor- 
tant act  of  power  shall  not  depend  exclusively  on  a  single 
will. 

Among  several  individuals  personal  interests  ordinarily 
differ  and  those  individuals  seek  each  on  his  own  behalf 


386  THEORY    OF    LAW 

the  realization  of  his  own  interest,  so  that  contention 
promptly  arises.  This  weakens  the  influence  of  private 
interests  which  may  come  to  nothingness  by  mutual 
opposition. 

The  general  interests  of  the  state  have  equal  weight 
with  all  individuals  and  are  not  paralyzed  when  en- 
trusted to  several  persons  because  they  tend  in  the 
same  direction,  but  they  are  thus,  on  the  contrary,  freed 
from  the  effects  of  individual  interests. 

Such  a  result  is  reached  not  only  by  entrusting  the 
different  functions  of  power  to  different  organs,  but  by 
giving  the  same  function  to  different  ones  at  the  same 
time.  It  is  not  simply  the  legislative,  judicial  and  ad- 
ministrative organs  that  modify  each  other's  action,  but, 
also,  the  two  Roman  consuls,  each  possessing  equally 
the  same  powers,  mutually  checked  and  limited  each 
other  in  exercising  them.  Each  of  them,  exactly  be- 
cause he  had  power  equal  to  his  colleague,  could  annul 
the  orders  and  acts  of  the  other  and  though  both  exer- 
cised the  same  functions,  between  them  as  individuals 
there  was  an  opposition  of  powers  that  produced  a  re- 
ciprocal limitation. 

It  is  at  bottom  the  same  principle  which  is  found 
under  the  modern  organization  of  the  legislature  into 
two  houses,  with  this  difference  always,  that  a  conclu- 
sion by  either  one  is  in  no  case  sufficient,  and  an  agree- 
ment between  the  two  chambers  is  required  for  a  valid 
act. 

In  all  these  examples  the  same  function  is  performed 
by  several  organs  at  the  same  time,  all  of  them  having 
equal  authority.  There  is  no  subordination  among 
them.  It  may  happen,  however,  that  the  various  organs 
charged  with  the  same  function  may  be  subordinate 
one  to  another.  This  happens  in  the  case  of  appel- 
late courts.  The  higher  ones  can  arrest  the  action  of 
the  lower  ones.  The  converse  is  not  true,  and  it  is 


SOCIAL  CONDITIONS  387 

to  be  observed  that  the  action  of  these  courts  is  not 
simultaneous  but  successive.  Naturally  different  ones, 
having  more  or  less  power,  but  possessing  equally  juris- 
diction, moderate  reciprocally  each  other's  activity. 

In  this  way  the  mutual  moderation  of  each  other's 
action  by  the  organs  of  power  in  a  state  is  sought  not 
only  by  entrusting  its  different  functions  to  different 
organs,  but,  also,  by  giving  the  same  one  to  different 
organs.  There  are,  however,  other  means  for  moderat- 
ing the  wills  which  direct  the  state's  power. 

The  organs  of  power  are  ordinarily  represented  by 
institutions  composed  of  a  number  of  persons.  Even 
in  the  unipersonal  organization  of  institutions  it  is  un- 
usual that  the  power  of  decision,  properly  speaking, 
belongs  to  a  single  person.  He  is  commonly  aided  by 
others  charged  with  co-operating  in  these  functions. 
The  organ  of  decision  is  thus  surrounded  with  con- 
sultive  organs,  advisory  boards,  executives,  etc.,  always 
composed  of  a  good  many  persons.  The  special  influ- 
ence of  each  person  depends  as  much  upon  the  organ- 
ization (collegiate  or  unipersonal)  as  upon  the  pro- 
cedure adopted  for  dispatching  of  affairs. 

This  influence  depends,  too,  upon  the  way  in  which 
questions  are  voted  upon,  whether  unanimity,  or  only 
a  majority  is  required,  and  if  the  latter,  whether  an 
absolute  or  only  a  relative  one  must  be  had.  Must 
there  be  a  public  or  only  a  secret  inspection  of  the 
vote?  The  same  affairs  may  be  voted  on  in  different 
ways  in  the  same  council  with  different  results  accord- 
ing as  one  or  another  method  of  procedure  is  followed. 
So,  too,  the  different  ways  in  which  all  the  organs  par- 
ticipate, organs  of  co-operation,  consultive  or  advisory, 
have  also  an  influence  upon  the  action  of  the  deciding 
organ.  In  Russia,  for  example,  although  all  matters 
belonging  to  the  supreme  administration  are  to  be  re- 
solved by  the  monarch,  in  fact,  however,  it  is  of 


388  THEORY   OF  LAW 

much  importance  for  an  affair's  determination  to  know 
who  has  prepared  it,  the  council  of  state,  the  council 
of  ministers  or  some  particular  minister. 

Then,  too,  different  procedures  applied  by  the  same 
organs  influence  the  decision  of  any  given  question. 
The  setting  in  motion  of  a  special  procedure  of  course 
favors  the  action  of  the  will  of  the  agent  who  has 
charge  of  that  process.  Well,  it  is  precisely  in  the 
influence  of  procedure  upon  the  direction  of  governmental 
activity  that  guarantees  of  impartiality  must  be  sought. 
The  government,  in  setting  in  motion  for  its  purposes 
of  administration  the  activity  of  its  agents,  compels 
them  to  conform  to  precise  rules,  makes  their  wills  im- 
personal and  impartial. 

There  is,  too,  a  certain  separation  of  powers  not 
only  between  different  institutions,  but  in  the  same 
organ  between  different  aspects  of  its  activity.  Such 
a  separation  of  powers  in  the  same  organ  having  for 
its  object  the  limiting  of  the  action  of  power  there 
is,  for  example,  in  the  case  where  the  same  organ, 
following  the  same  procedure,  is  charged  with  estab- 
lishing constitutional  measures  and  with  passing  or- 
dinary legislation.  It  cannot  be  said  that  the  omnipo- 
tence of  parliament  has  in  such  a  case  suffered  any 
loss  by  the  setting  up  of  the  new  constitutional  rule. 
The  revision  is  not  entrusted  to  any  special  organ, 
yet,  always,  the  modification  of  constitutional  pro- 
visions is  more  difficult  and  by  this  fact  the  legis- 
lative activity  of  parliament  finds  a  certain  limitation. 

The  same  distinction  exists,  too,  under  an  absolute 
monarchy  when  there  is  adopted  for  the  promulgation 
of  general  legislation  a  special  procedure,  distinct  from 
that  followed  in  the  case  of  decrees  of  the  emperor.  The 
absolute  monarch  is  omnipotent  like  the  parliament 
which  is  also  the  constituent  assembly.  But,  if  only 
those  acts  of  the  emperor  which  are  put  out  in  a  certain 


SOCIAL   CONDITIONS  389 

form,  have  the  force  of  law,  his  power  is  none  the  less 
limited  in  a  certain  degree.  The  consultive  council,  for 
example,  if  there  is  one,  ought  to  be  advised  before  the 
promulgation  of  the  law. 

The  power  of  the  state  can  then  be  limited  in  three 
different  ways,  and  not  simply  by  the  separation  of  the 
powers;  first,  by  distributing  different  functions  among 
different  organs,  then,  by  executing  the  same  function 
by  different  organs,  and  finally  by  giving  several  func- 
tions to  the  same  organ  but  requiring  under  differing 
conditions  different  procedures. 

All  these  forms  can  be  brought  under  one  conception, 
that  of  the  combination  and  collaboration  of  powers. 
The  mutual  checking  brought  about  by  this  adjustment 
of  acts  of  power,  results,  always,  in  the  combination  of 
powers  in  some  one  of  the  three  forms  just  indicated. 

These  different  forms  do  not  apply  the  same  checking 
effect  to  all  the  forces  which  make  up  the  state's  power. 
This  check  appears  most  of  all  in  the  execution  of  the 
same  function  by  several  organs.  In  this  case  each 
organ  has  an  absolutely  equal  power  with  its  associate 
organ,  and  every  act  which  it  performs  can  be  set  aside 
by  an  act  of  the  other.  When  the  different  functions  are 
discharged  by  different  organs  their  mutual  moderating 
effect  is  less  direct.  Each  organ  in  the  discharge  of  its 
own  function  is  entirely  independent,  and  their  action  on 
each  other  is  only  indirect,  and  is  caused  by  the  fact 
that  they  depend  upon  one  another  for  the  functions 
with  which  they  are  charged.  Thus,  for  example,  when 
the  legislative  power  is  separated  from  the  executive  the 
latter  would  be  limited  only  in  the  degree  that  it 
would  depend  upon  the  legislature.  In  the  performance 
of  its  own  discretionary  powers  there  would  be  no  limita- 
tion. 

This  reciprocal  limitation  is  still  more  reduced  when 
it  is  the  same  organ  which  is  charged  with  different 


390  THEORY  OF  LAW 

functions,  each  following  a  special  form  of  procedure. 
In  this  case  the  limitation  does  not  assume  the  form  of 
opposition  between  independent  wills  but  that  of  mutual 
influence,  as  the  two  cannot  of  course  be  at  the  same 
time  equal  and  one  subordinate  to  the  other;  the  one 
being  charged  with  deciding,  the  other  only  with  co-oper- 
ation. 

These  three  forms  of  combinations  of  power  can  be 
joined  to  one  another,  and  form  new  combinations  which 
would  create  a  greater  variety  in  the  functions  of  the 
different  organs  of  the  state.  The  functions  of  power 
can  be  subdivided  in  various  ways  among  different  or- 
gans and  also  the  same  organ  can  perform  various  func- 
tions. Such  an  adjustment  is  in  contradiction  to  the 
specialization  of  the  organ's  activity,  but  would  not  do 
away  with  the  reciprocal  limitations  to  which  they  are 
respectively  subject.  We  have  already  shown  that  the 
combination  of  powers  is  a  principle  altogether  opposed 
to  that  of  the  division  of  labor.  This  is  why  such  a  mode 
of  activity  does  not  necessarily  suppose  specialization  of 
the  organs  of  power,  and  each  organ  may  not  always  per- 
form the  same  identical  function.  The  complex  combi- 
nation of  powers  only  supposes  the  resolution  of  different 
acts  of  power  into  their  integral  elements  and  the  per- 
formance of  different  elements  of  the  same  act  by  different 
organs,  so  limiting  one  another. 

It  is  quite  possible  that  the  same  organ  in  different 
cases  performs  different  functions.  If,  for  example,  a 
legislative  organ  has  the  right  of  sanctioning  a  budget, 
and  also  that  of  calling  a  minister  to  account,  these  func- 
tions quite  naturally  become  very  diverse,  and  the  or- 
gan's specialization  is  reduced;  but  the  cases  in  which 
the  different  organs  limit  each  other  become  more  and 
more  numerous  because  an  agreement  between  the  two 
powers,  legislative  and  executive,  becomes  more  neces- 
sary, needs  to  be  more  permanent.  We  would  say  the 


SOCIAL  CONDITIONS  391 

same  so  far  as  concerns  the  part  of  the  chief  executive  in 
preparing  laws,  when  he  possesses  the  right  of  veto.  His 
functions  become  more  varied  and  less  specialized,  but 
the  reciprocal  limitations  of  the  legislature  and  the 
executive  go  on  enlarging. 

So,  when  the  principle  of  the  separation  of  powers  is 
raised  up  to  the  more  general  one  of  the  combination  of 
powers,  the  facts  of  political  life  which  were  found  to 
be  incompatible  with  the  principle  of  the  separation 
of  powers,  are  found  to  be  explained  completely  by  the 
more  general  principle  of  their  combinations  and  collabo- 
ration. 

There  is  no  state  in  which  the  three  powers,  executive, 
legislative  and  judiciary,  are  wholly  and  rigorously  sepa- 
rated from  each  other.  Even  in  states  whose  constitu- 
tions proclaim  an  absolute  separation  of  them,  such  sepa- 
ration cannot  in  fact  be  accomplished.  The  executive 
power  does  not  stop  with  enforcing  the  law.  It  makes, 
itself,  some  general  rules  of  procedure  which  are  legal 
norms.  The  legislative  bodies  do  not  merely  promulgate 
laws,  properly  so  called,  but  they  put  out,  also,  admin- 
istrative orders  under  the  form  of  legislative  acts,  and  so 
encroach  upon  the  domain  of  the  executive.  All  of  these 
facts  contradict  absolutely  the  principle  of  the  separation 
of  the  three  powers.  The  principle  of  the  combination  of 
the  powers,  on  the  contrary,  explains  these  facts  as 
special  cases  of  collaboration. 


BOOK  IV 

POSITIVE  LAW 

CHAPTER  I 

THE  SOURCES  OF  POSITIVE  LAW 
Section  49.    Positive  Law 

The  permanent  connection  between  men  leads  us  to 
make  our  conception  of  law  objective.  Legal  rules  primi- 
tively elaborated  by  the  subjective  consciousness  find 
an  objective  expression  under  the  conditions  of  social 
life  in  customs,  which  are  a  result  of  juridical  prac- 
tice, and  in  legislation,  the  instrument  of  governmen- 
tal power.  All  these  external  forms  of  law  do  not  depend 
for  existence  merely  on  the  subjective  consciousness. 
Customs,  judicial  practice,  legislation,  present  them- 
selves as  something  objective.  The  very  changes  which 
occur  in  customs  and  in  law  and  which  go  to  make  up 
the  phenomena  of  social  life,  are  not  caused  according  to 
the  laws  of  mental  phenomena,  but  according  to  the 
special  laws  of  social  life.  However,  the  subjective  con- 
ception of  rights  is  not  destroyed  by  customs,  by  judicial 
practice,  nor  by  legislation.  This  conception  goes  on  de- 
veloping as  a  necessary  manifestation  of  the  individ- 
ual's psychic  life  and  as  it  is  more  mobile  and  not 
so  subject  to  laws  of  its  own,  it  can  hardly  fail  to  develop 
differences  from  the  law  which  is  expressed  in  objective 
forms. 

Hence  a  division  of  law  into  two  parts:  the  legal  rules 
on  the  one  side  expressed  under  the  forms  of  customs  and 
of  legislation  constituting  the  positive  law,  and  the  law, 
"right,"  on  the  other  side,  under  its  subjective  form 

393 


394  THEORY  OF  LAW 

which  develops  freely.  This  division  exists  not  only  in 
law  but  throughout  the  whole  domain  of  human  activity 
under  the  influence  of  the  conditions  of  social  life.  Doubt- 
less, in  spite  of  the  subjective  conditions  of  human  activ- 
ity, despite  all  individual  qualities,  knowledge,  and  ex- 
perience, the  social  and  intellectual  life  go  on  developing 
more  and  more.  They  have  grown  unceasingly  by  the 
labor  of  former  generations  and  may  be  considered  as  the 
capital  of  human  activity.  But  all  this  culture  thus  ob- 
tained cannot  destroy  the  individual  factor  and  is  at  the 
same  time  a  guarantee  of  the  development  of  the  race. 
A  fruitful  activity  is  impossible  for  any  one  unless  it  is 
conformed  to  this  social  culture  which  has  been  slowly 
elaborated,  but  the  creative  factor  remains  always 
the  individual.  This  social  culture  is,  like  capital, 
the  fruit  of  labor,  and  powerless  to  produce  new 
values  unless  new  labor  comes  to  its  aid.  So,  the 
development  of  human  life  depends  upon  subjective  con- 
ditions. 

Positive  law  is  only  one  element  of  this  social  culture, 
and,  as  each  social  stage  is  only  a  heritage  from  past  gen- 
erations, it  results  that  it  can  neither  destroy  nor  replace 
that  subjective  conception  of  law  and  right  which  springs 
from  the  immediate  needs  of  the  present  life  and  upon 
which  depends  the  further  development  of  the  positive 
law  itself. 

To  imagine  a  juridical  life  which  should  be  absolutely 
determined  by  positive  law  alone,  without  any  partici- 
pation of  the  subjective  conception,  is  something  as 
impossible  as  to  imagine  a  religion  without  any  religious 
sentiment,  morals  without  conscience  or  feeling  of  moral 
duty,  or  a  nation  without  the  individual's  productive 
activity. 

Positive  law  depends  necessarily  upon  the  subjective 
conception  of  right,  but,  at  the  same  time,  as  it  consists 
in  a  heritage  from  the  past  it  can  never  be  in  perfect 


POSITIVE  LAW  395 

correlation  with  the  subjective  conception  of  the  present 
generation.  In  positive  law  there  is  always  an  element, 
already  grown  old,  which  does  not  answer  to  modern 
needs  or  to  modern  conceptions  of  justice.  This  is  why 
positive  law  has  sometimes  been  regarded  as  an  heredi- 
tary malady  of  human  society.1 

In  all  cases  the  subjection  of  human  relations  to  the 
rules  of  positive  law  is  something  vexatious  and  troubles 
somewhat  the  free  development  of  social  life.  Some  such 
considerations  as  to  positive  law  are  mingled,  however, 
with  others  much  more  favorable. 

First  of  all  positive  law  offers  the  same  advantages  as 
are  possessed  by  society.  In  using  the  positive  law  to 
regulate  our  mutual  relations  we  are  using  something 
which  has  been  modified  and  elaborated  by  a  whole 
course  of  generations.  The  individual's  subjective  con- 
ception cannot  embrace  the  infinitely  varied  and  multi- 
plied relations  of  the  law.  I  might  elaborate,  myself, 
voluntarily,  a  number  of  cases  in  which  my  interests 
would  conflict  with  those  of  my  fellows,  but  these  cases, 
relatively  few,  might  easily  fail  to  fit  some  circumstances 
of  which  I  had  not  dreamed.  Positive  law,  being  a  prod- 
uct of  the  experience  of  many  centuries,  is  always  much 
more  complete  than  any  possible  conception  of  subjec- 
tive right. 

The  idea  of  doing  without  positive  law,  constructed  by 
successive  generations,  might  be  held  at  a  time  when  it 
was  believed  that  there  was  a  natural  law,  a  system  of 
legal  rules  created  by  nature  herself.  This  eternal  and 
absolute  law  must  appear  as  more  complete  than  the 
gradually  developed  positive  law.  But  if  we  no  longer 
recognize  the  existence  of  natural  law,  we  can  no  'onger 
set  up  against  positive  law  any  but  a  subjective  concep- 
tion of  right  and  law,  a  conception  itself  gradually  devel- 

1  "Es  erben  sich  Gesetz  und  Rechte 
Wie  eine  ewige  Krankheit  fort."  —  Goethe 


396  THEORY  OF  LAW 

oped  under  the  influence  of  multiplied  conditions  and 
which  cannot  possibly  replace  positive  law. 

If  positive  law  is  more  complete,  it  is  also  more  gen- 
eral. Juridical  norms  regulate  our  interests,  all  the  inter- 
ests of  men.  This  is  why  they  ought  to  be  known  by  all. 
To  be  sure,  since  the  subjective  conceptions  of  law  also 
spring  up,  as  a  result  of  social  conditions,  it,  too,  presents 
a  certain  generality;  but  this  generality  is  altogether 
conventional  and  limited  by  numberless  individual  pe- 
culiarities and  a  great  diversity  of  human  consciences. 
So,  the  generality  of  the  subjective  conception  of  law 
is  limited  to  a  very  small  circle  of  individuals.  Society, 
on  the  other  hand,  grows  unceasingly,  and  a  constantly 
increasing  number  of  men  must  be  taken  into  the 
circle  of  legal  relations,  and  this  is  why  legal  rules 
must  be  known  of  all  men  and  be  recognized  as  obliga- 
tory by  everybody.  Only  positive  law  can  answer  such 
a  requirement. 

Positive  law  itself,  also,  is  very  diverse  and  much  varied. 
It,  too,  depends  upon  conditions  of  time  and  place, 
but  this  dependence  is  expressed  by  external  signs.  For 
this  reason  positive  law  is  distinguished  by  great  pre- 
cision. 

The  changes  which  take  place  in  the  subjective  con- 
ception of  law  arise  in  an  intangible  way,  which  very 
often  shows  no  outward  indication.  On  the  contrary, 
changes  in  custom,  in  judicial  practice,  or  in  legislation 
are  manifested  by  facts  which  are  external  and  easily 
recognizable. 

It  is,  then,  only  the  positive  law  which  can  fur- 
nish these  principles  which  are  assumed  to  be  known 
to  all  within  the  sphere  of  its  action.  It  is  on  this 
principle  that  the  doctrine  rests,  that  no  one  may 
claim  not  to  know  the  law,  and  no  man's  ignorance  of 
it  shall  do  away  with  his  responsibility.  Error  juris 
semper  nocet. 


POSITIVE   LAW  397 


Section  50.     Foundation  of  the  Positive  Law's  Action 

The  foundation  for  the  law's  action  rests  in  general 
among  the  vital  conditions  of  society.  With  this  thought 
one  can  say  that  law  acts  upon  humanity  as  the  sole 
and  indispensable  agency  for  establishing  some  kind  of 
harmony  among  the  constantly  clashing  individual  inter- 
ests, not  permitting  the  overthrow  of  society,  nor  sacri- 
ficing to  social  order  the  independence  of  individual 
people  and  their  freedom.  Starting  from  another  point 
of  view  as  to  the  very  essence  of  law  we  would  reach  an 
altogether  different  statement  of  it.  Thus  Stahl  says: 
"Gottes  Ordnung  ist  der  Grund  des  Ansehens  des  Rechts" 
According  to  Kant  the  foundation  for  the  obligation 
of  obedience  to  law  is  the  latter's  accordance  with 
reason;  according  to  Bentham  it  is  in  the  possibility 
of  betterment,  the  advantage  of  the  greatest  number  of 
people. 

Just  now  we  shall  not  enter  upon  this  question.  In 
speaking  of  the  foundation  for  the  action  of  legal  norms, 
I  have  in  view  the  question  of  why  in  a  given  govern- 
ment, a  given  society,  there  acts  inevitably  some  given 
system  of  positive  law,  with  all  its  peculiarities  and  dif- 
ferences from  other  systems,  acting  with  it  in  the  rela- 
tions of  time  and  space. 

The  need  of  some  juridical  order  is  universal  in  human 
societies  which  have  attained  a  certain  degree  of  devel- 
opment. As  a  matter  of  fact,  this  immutable  law  shows 
itself  under  very  various  forms  because  in  each  society  it 
is  not  merely  law  in  general  which  has  effect,  but  a  sys- 
tem of  legal  rules  fashioned  for  that  very  society.  Law, 
in  furnishing  order  to  the  social  life,  subjects  the  state  to 
the  conditions  of  time  and  space. 

It  is  for  this  reason,  in  order  that  it  may  always  answer 


398  THEORY  OF  LAW 

its  purpose  and  not  become  a  dead  letter  that  the  law 
must  always  assume  a  form  adequate  to  its  epoch  and 
environment.  Subject  to  this  reservation,  laws  act  in 
an  independent  fashion,  whether  or  not  they  harmonize 
with  divine  precepts  or  with  the  results  of  reason.  The 
rules  of  positive  law  act  with  the  same  independence. 
All  this  leads  to  the  question  as  to  the  foundation  for 
this  relative  independent  action  of  each  system  of  posi- 
tive law. 

Law  is  not  something  which,  like  natural  and  physical 
forces,  exists  independently  of  human  action  and  may  be 
opposed  to  this  latter.  It  is,  on  the  contrary,  an  order 
established  by  men  and  for  themselves.  It  does  not  mat- 
ter, so  far  as  concerns  this,  whether  the  man  acts  accord- 
ing to  the  law  of  causation  or  acts  freely.  Whichever  it 
be,  law  established  in  accordance  with  the  principle  of 
causation,  or  by  uncaused  voluntary  action,  it  is  always 
the  work  of  man.  It  is  also  a  rule  for  the  mutual  rela- 
tions of  men  to  each  other.  It  is  a  social  order.  This  is 
why  the  need  of  law  and  the  possibility,  even  of  its  crea- 
tion, is  out  of  the  question  apart  from  society.  Law  can 
exist  only  as  there  exists  union  among  men.  Law,  there- 
fore, is  nothing  foreign  imposed  upon  men  from  without. 
It  is  a  product  of  human  consciousness  and  for  it  to  exist 
there  must  be  association,  a  social  life,  among  men. 
Law,  born  with  the  society,  is  created  by  that  society  as 
the  rule  governing  the  relations  of  the  associated.  In 
each  sociecy  it  acts  as  if  created  to  bring  about  the  union 
of  all  the  members. 

So  the  foundation  for  the  action  of  positive  law  con- 
sists in  the  fact  that  it  is  made  by  the  society  itself,  and* 
in  each  society  has  no  force  except  in  so  far  as  it  is  the 
work  of  that  society. 

It  sometimes  seems  that  there  are  exceptions  to  such 
a  rule.  It  sometimes  happens  that  there  is  found  in  a 
society  a  law  which  originated  outside,  in  some  neighbor- 


POSITIVE   LAW  399 

ing  society.  In  this  case  it  is  important  to  distinguish 
between  the  law  of  the  country  itself  and  that  which 
comos  from  the  neighbor.  We  have  in  mind  at  this 
moment,  not  any  distinction  in  the  material,  but  only  a 
distinction  according  to  the  form,  according  to  the  basis, 
for  the  action  of  the  law.  Consequently,  if  the  legislator 
takes  his  material  in  part  from  foreign  laws  and  in  part 
from  native  ones  and  local  customs  and  makes  of  the 
whole  one  common  law,  no  distinction  from  our  present 
point  of  view  will  be  left  between  the  national  and  the 
foreign  law.  But  it  may  happen  that  a  foreign  law  as  a 
whole  has  effect  over  a  country.  Ought  such  a  case  to 
be  considered  as  an  exception  to  the  principle  that  the 
positive  law  is  to  be  considered  as  always  the  product  of 
the  society  where  it  is  applied?  In  the  German  Empire 
of  the  XIII  and  XIV  centuries  Roman  law,  without 
being  fused  with  German  law,  has  weight  of  its  own  and 
a  power  independent  of  local  law. 

It  might  seem  at  first  sight  that  such  a  fact  would 
completely  destroy  our  thesis  that  law  acts  only  in  the 
society  in  which  it  was  made.  To  settle  this  question, 
however,  it  is  not  enough  to  show  the  force  of  Roman 
law  in  Germany  in  those  centuries.  The  route  by  which 
it  got  there  must  be  examined. 

The  corpus  juris  civilis  is  a  legislative  compilation. 
Three  compilations,  all  three  the  work  of  legislative 
power,  have  gone  to  make  it  up  and  give  it  all  the  force 
it  has.  But,  carried  into  Germany,  it  became  a  custo- 
mary law.  By  consequence  of  such  custom,  by  connect- 
ing with  such  a  basis  of  action,  it  renewed  itself  com- 
pletely. In  Germany  the  corpus  juris  civilis  acted  not 
as  the  will  of  the  emperor  of  Rome  but  as  German  cus- 
tom. Consequently,  in  fact,  while  certainly  derived  from 
a  foreign  source,  this  law  so  far  as  it  was  German  positive 
law,  manifests  itself  as  the  work  of  the  German  nation. 
This  is  why  in  Germany  Roman  law  is  recognized  as 


400  THEORY  OF  LAW 

acting  only  within  the  limits  of  the  usage  which  applies 
it,  absolutely  as  German  customary  law.  Its  appro- 
priation was  based  on  the  work  of  the  glossators,  but 
they  did  not  interpret  all  parts  of  the  corpus  juris  civilis, 
and  the  parts  they  laid  aside  were  never  applied  in  Ger- 
many. 

This  appropriation  of  Roman  law  offers  for  Russia  a 
practical  interest  since,  thanks  to  it,  Roman  law  acts 
still  as  a  subsidiary  law  in  the  Baltic  provinces  which 
were  once  under  Livonian  rule,  a  fief  of  the  Holy  Roman 
Empire.  Roman  law  has  left  its  mark  on  nearly  every 
state  in  Europe.  In  France  it  never  ceased  to  act  in 
the  southern  part,  and  later  the  lawmakers  brought  it 
into  the  northern  provinces  also.  Even  in  England  and 
Russia,  which  are  among  the  states  most  distinguished 
by  a  special  legal  development,  Roman  law  has  had 
great  influence,  at  least  upon  the  practice  of  special 
tribunals.  Thus  in  England,  aside  from  the  church, 
which  according  to  one  jurist's  expression,  vivit  lege 
Romana,  Roman  law  has  found  application  in  the  ad- 
miralty jurisdiction.  It  has,  in  fact,  formed  the  basis 
of  international  customs,  known  under  the  name  of  Rules 
d'Oleron,  which  is  mostly  made  up  of  rules  from  Roman 
law. 

In  Russia,  Roman  and  Byzantine  law  were  frequently 
placed  under  contribution  by  the  church  tribunals,  and 
it  is  truly  to  be  said  that  the  ecclesiastical  jurisdiction 
was  formerly  quite  extended.  Roman  law  received  among 
us  the  form  of  a  canonical  law  and  its  influence  has  been 
very  great  over  the  development  of  all  law  and  especially 
that  of  the  family. 

Greco-Roman  modifications  of  the  jus  civile  have  pene- 
trated even  into  the  Caucasus  and  into  Georgia.  The 
second  part  of  the  Georgian  code,  that  of  Bachtang 
V,  who  lived  at  the  end  of  the  VII  century,  contains 
some  laws  of  Leon  the  Wise,  of  Constantine,  and  of  other 


POSITIVE  LAW  401 

Byzantine  emperors,  relating  to  the  administration  of 
justice.  Georgian  law  is  distinguished  by  large  borrow- 
ings. Besides  those  indicated  there  are  many  from 
the  Pentateuch  and  from  Armenian  legislation.  Since 
Georgia's  subjection  to  Russia  it  is  the  code  of  the  Coun- 
cil of  1649  and  the  military  code  of  Peter  the  Great 
which  is  in  force. 

Foreign  law  may  be  adopted  by  legislative  act.  Thus, 
for  example,  the  French  code  was  adopted  in  Poland, 
Belgium  and  Italy,  etc.  Such  an  example  is  found  too 
in  the  mediaeval  history  of  the  cities  on  the  Baltic.  Thus, 
the  city  of  Rega  took  from  its  founder,  Bishop  Albert  I, 
the  law  which  was  in  force  in  Visbi,  a  town  dis- 
tinguished for  its  mixed  population  so  that  every  nation 
had  a  street  in  it.  The  city  of  Revel  is  of  interest  jurid- 
ically. The  Danish  King  Erik  V  in  1228  bestowed  upon 
it  the  legislation  then  in  force  in  Lubeck.  Accord- 
ing to  the  ideas  of  that  day  the  Lubeck  magistrate  was 
the  highest  court  for  Revel.  So  the  Revel  magistrate 
in  cases  of  doubt  betook  himself  with  his  question  to 
Lubeck  and  got  there  a  determination.  Lubeck  law 
prevailed  in  Revel  not  merely  as  it  was  when  adopted, 
but  with  later  additions  and  changes.  At  the  same 
time  similar  relations  prevailed  between  Revel  and 
Narva. 

In  southwest  Russia  prevailed  in  the  same  way  the 
law  of  Magdeburg  which  had  been  bestowed  by  the 
kings  of  Poland  and  was  continued  in  force  by  the  Mos- 
cow Czars. 

In  all  the  preceding  examples  foreign  law  prevailed 
without  change  of  form,  controlling  unchanged  the  for- 
eign society  by  its  adoption,  but  special  action  in  that 
society  introduced  it,  the  will  of  the  local  government. 
Consequently  this  borrowed  law,  none  the  less  on  that 
account,  presents  itself  as  taking  its  force  from  the  act 
of  that  same  society  in  which  it  is  in  force. 


402  THEORY  OF  LAW 


Section  51.     The  Sources  of  Law 

PUCHTA.     Gewohnheitsrecht,  I.     ss.  143-148.     Vorlesungen  I. 

SAVIGNY.     System,  I.     ss.  6-57. 

MUELLER.     Die  Elemente  der  Rechtsbildung.     ss.  427-443. 

AUSTIN.     Lectures,  II,  pp.  526  ff. 

ADICKES.     Zur  Lehre  von  Rechtsquellen,  1872. 

REGELSBERGER.     Pandekten,  I.     Sec.  82  ff. 

We  have  already  said  that  the  correlation  of  the  posi- 
tive law  with  the  subjective  law,  the  sense  of  right,  is  not 
complete,  that  this  was  to  be  regretted;  but  it  must, 
however,  be  recognized  that  the  positive  law  offsets  this 
by  its  precision  and  the  ease  of  knowing  it. 

In  considering  the  origin  of  law  we  showed  that  it  had 
been  first  established  as  a  determinate  order  of  the  mu- 
tual relations  which  men  have  with  each  other.  Each 
individual  expects  his  neighbor  to  observe  the  same 
conduct  under  the  same  circumstances,  and  if  it  hap- 
pens that  this  expectation  is  not  realized,  then  he  will 
require  of  the  one  responsible  for  the  injurious  act  com- 
pensation for  any  wrong  which  he  suffers.  Under  such 
conditions  each  of  us  asks  the  same  question,  how  to 
distinguish  the  general  rules  of  law,  which  are  obligatory 
upon  all,  from  those  rules  which  have  only  a  subjective 
force. 

It  is  highly  important  for  each  of  us  to  determine  be- 
forehand with  all  possible  precision  what  are  the  rules 
which  govern  us,  and  what  are  the  rights  they  give  us, 
and  the  obligations  they  charge  us  with.  An  exact  reply 
can  be  made  only  as  to  rules  which  have  become  objec- 
tive. To  do  this  they  must  assume  some  specific  form. 
This  is  why  the  theory  of  the  forms  which  make  up  the 
objective  character  of  a  law  has  such  importance  for 
the  jurist. 


POSITIVE  LAW  403 

These  objective  forms  of  legal  norms  which  serve  to 
indicate  the  obligatory  character  of  the  rule  are  called 
"sources  of  law."  To  understand  the  doctrine  of  the 
sources  of  law,  it  is  very  important  not  to  confuse  the 
technical  meaning  of  the  phrase  with  that  ordinarily  given 
to  it.  We  must  distinguish,  in  fact,  the  meaning  here 
given  to  the  expression  "sources  of  law"  from  that  of 
mere  means  of  knowledge,  fontes  ex  quibus  notitia  juris 
hauritur.  Sources  means  also  historic  monuments,  and 
the  word  is  used  in  this  sense  in  the  historic  sciences. 
These  notions  can  be  applied  in  part  to  the  very  matter 
now  under  consideration,  but  never  by  more  than  an  al- 
together superficial  analogy,  due  to  accident.  If,  for  ex- 
ample, we  have  the  authentic  text  of  an  enactment,  we 
may  say  that  we  have  the  source  of  the  law  in  the  tech- 
nical sense  of  the  word  and  that  we  have  at  the  same 
time  its  source  in  the  meaning  that  we  have  the  means 
of  knowing  it.  But  if  such  a  text  is  not  to  be  had,  if 
we  have  the  law  only  in  the  same  indirect  way  as  we  do, 
for  example,  the  twelve  tables,  or  the  law  of  Voconia,  or 
others,  such  original  laws  are  still  sources  of  law  without 
being  any  longer  in  any  sense  sources  of  knowledge  of 
the  law.  In  the  same  way  if  we  learn  of  some  rural  cus- 
tom in  Ephimenko's  or  Pachmann's  collections,  these 
collections  are  the  source  of  our  knowledge  of  it,  but  the 
custom  itself  is  the  source  of  the  law  or  of  any  effect 
upon  law  thereby  produced. 

These  different  conceptions  have  been  often  confused, 
especially  in  antiquity.  So  among  the  Romans  it  is, 
thanks  to  a  confusion  of  these  two  notions  of  source, 
that  there  arose  a  distinction  into  written  and  un- 
written law.  (Jus  scriptum  and  jus  non  scriptum.)  This 
distinction  was  rigorously  applied  and  the  written  law  in- 
cluded, besides  legislation,  the  praetor's  edicts  and  the 
responsa  prudentium.  It  was  required  that  the  law  be 
at  its  origin  written  down  (inscription  quod  ah  initio  litteris 


404  THEORY  OF  LAW 

mandatum  est).  From  this  it  resulted  that  a  custom 
written  down  after  its  establishment,  remained,  notwith- 
standing, unwritten  law,  and  the  jurists  established  a 
new  distinction  between  a  law  created  by  written  enact- 
ment or  establishment,  and  one  already  existing  which 
is  then  set  down  in  writing.  Despite  the  slight  impor- 
tance of  such  a  distinction  it  was  sedulously  preserved, 
and  was  even  developed  by  later  jurists.  Thibaut  puts 
this  distinction  at  the  head  of  his  classification  of  sources 
of  law,  and  Gluck  developed  it  very  far.  He  accepts  like 
a  good  many  others  the  distinction  between  the  jus 
scriptum  sensu  grammatico  and  the  jus  scriptum  sensu 
juridico,  which  latter  includes  only  law  consciously  estab- 
lished by  means  of  written  language. 

A  later  confusion  is  that  which  has  arisen  between  the 
source  of  law  considered  as  the  mark  which  distinguishes 
it  as  obligatory,  and  the  source  considered  as  the  matter 
from  which  the  content  of  legal  rules  is  drawn.  Such  a 
confusion  grew  out  of  the  fact  that  before  the  time  of  the 
historical  school  it  was  thought  that  law  was  the  legis- 
lator's creation  pure  and  simple. 

The  will  of  the  legislator  was  then  recognized  as  the 
sole  cause  of  legal  rules.  The  command,  laid  down  by 
sovereign  power,  to  observe  a  given  rule  was  according 
to  the  opinion  of  that  time  the  sole  authority  for  saying 
that  the  rule  was  obligatory.  We,  on  the  other  hand,  are 
able  to  recognize  that  legislation  is  one  force  for  creating 
rights,  but  that  it  is  only  one  of  the  forms  under  which 
right,  the  work  of  conscience,  law,  is  expressed. 

The  legislator  does  not  create  the  law  arbitrarily.  He 
has  no  power  to  make  rules  which  are  not  prepared 
for  by  the  march  of  social  advance.  Legislation  passed 
in  any  other  way  remains  a  dead  letter  and  totally  un- 
applied. The  question  of  the  sources  of  law  thus 
put  is  totally  different  from  that  which  we  are  seeking 
now  to  examine.  For  this,  it  would  not  be  important  to 


POSITIVE  LAW  405 

know  whether  or  not  a  rule  is  obligatory  upon  all, 
but  merely  to  know  what  factors  participate  in  its  estab- 
lishment. 

If  we  understand  the  question  in  this  last  fashion  we 
may  admit  with  Adickes  that  the  general  source  of  law 
is  subjective  reason,  or,  better  said,  the  subjective  con- 
sciousness. All  the  other  factors  affect  the  formation  of 
law  only  through  our  consciousness.  Divine  orders,  the 
nature  of  things,  reason,  conformity  to  an  end,  moral  duty, 
all  this  can  induce  the  formation  of  legal  rules,  only  on  one 
condition,  which  is  that  all  these  motives  are  admitted 
by  the  human  consciousness.  The  general  consciousness 
is  only  the  sum  of  individual  ones,  and  this  is  why  it  can 
be  said  that  the  subjective  consciousness  is  like  a  hearth 
where  concentrates  the  action  of  all  the  creating  factors 
of  law.  But  this  subjective  consciousness  cannot  be  ad- 
mitted as  the  source  of  law  in  the  technical  sense,  be- 
cause the  subjective  consciousness  of  a  norm  is  not  the 
index  of  its  obligation  over  us  and  is  not  the  form  of  its 
objectivity. 

In  the  practical  meaning  of  the  term  only  custom, 
judicial  practice,  and  legislation  can  be  recognized  as 
sources  of  law.  It  cannot  be  admitted  that  the  nature  of 
things  is  a  source  of  law,  for  such  nature  is  very  differ- 
ently understood  among  men.  The  conception  recog- 
nized by  enacted  and  established  law,  customs,  and  judi- 
cial practice,  is  the  only  one  obligatory  for  all  the  world. 
It  is  necessary  to  say  this  much  as  to  the  conception  of 
justice  which  is  held  by  all,  but  in  such  different  fashions, 
and  which  receives  objective  precision  only  on  condition 
of  being  expressed  through  the  sources  of  positive  law 
above  indicated. 

Finally,  and  for  the  same  reasons,  we  must  place  in 
this  category  of  false  sources,  the  science  of  law.  The 
numerous  controversies,  which  the  question  as  to  what 
are  to  be  considered  sources  of  law,  has  given  birth,  come 


406  THEORY  OF  LAW 

most  of  all  from  wrong  notions  as  to  the  action  and  func- 
tion of  the  sources  of  law. 

Before  the  appearance  of  the  historical  school,  when 
positive  law  was  still  considered  as  a  voluntary  human 
institution,  it  was  believed  that  legislation,  expression  of 
the  creative  will  of  law,  was  the  sole  force  in  setting  up 
positive  law.  Therefore  legislation  was  then  recognized 
as  the  sole  source  of  it  because  there  was  no  other  creat- 
ing force  to  produce  it. 

The  historical  school  taught  a  diametrically  opposed 
theory.  The  force  creating  law  is  for  them  the  genius  of 
the  people  which  embraced  all  positive  law  even  before 
it  was  external  y  expressed  by  the  "sources,"  which 
were  then  considered  as  only  sources  of  our  knowl- 
edge of  the  law,  living  in  the  genius  of  the  people.  In 
this  way  these  authors  considerably  enlarged  the  notion 
of  the  sources  of  law  by  adding  to  it  the  science  of  law, 
which  certainly  serves  as  a  source  of  our  knowledge 
of  law,  but  which  cannot  furnish  the  quality  that  makes 
these  ru  es  ob  igatory.  The  definition  which  we  have 
accepted  of  sources  of  law,  the  recognition  of  what  they 
are  as  necessary  juridical  forms  for  setting  up  ob- 
jective law  and  serving  at  the  same  time  as  the  mark  of 
the  obligatory  character  of  the  rules,  this  definition 
holds  the  mean  between  the  two  other  definitions  we  have 
discussed. 

Therefore  the  source  of  law  has  importance  only  as  a 
test  of  the  obligatory  character  for  us  of  the  given  rule. 
Legislation  or  custom  are  not  forces  which  create  law, 
but  merely  forms  by  which  we  decide  that  a  law  is  oblig- 
atory Any  rule  may  have  its  effect,  but  one  which  is 
not  expressed  through  legislation,  custom  or  judic'al  usage 
is  of  slight  effect  and  supposes  for  its  complet  on  the  en- 
actment, custom,  or  judicial  acceptance.  Its  action 
has  little  precision  because  it  lacks  the  external  in- 
dex of  an  obligatory  character.  It  is  impossible  to 


POSITIVE  LAW  407 

show  in  advance  what  its  action  will  be  or  to  indicate 
to  what  particular  cases  it  will  apply.  Its  application 
to  each  case  must  be  shown.  On  the  contrary,  a  rule 
expressed  in  the  general  sources  of  law  can  be  precisely 
limited  in  advance.  In  such  precision  there  may  be 
a  distinction  of  more  or  less,  but  this  is  nonessential. 
Only  the  action  of  legislation  can  be  exactly  delimited. 
It  is  only  of  it  that  we  can  say  in  a  general  way,  accu- 
rately in  advance,  to  what  cases  in  both  space  and  time 
it  will  apply.  The  same  precision  cannot  be  reached  as 
to  customs  and  judicial  usage.  The  precise  moment 
when  the  action  of  a  rule  of  custom  or  judicial  usage  will 
commence  cannot  be  foretold.  Custom  is  established 
little  by  little,  and  it  is  hardly  possible  to  fix  the  exact 
boundary  between  the  established  custom  and  the  one 
only  forming.  Judicial  usage  presents  a  form  a  little  bet- 
ter ascertained,  notably  so  as  regards  decisions  of  a  given 
time;  but  the  existence  of  a  rule  in  a  decree  or  judg- 
ment supposes  that  it  was  previously  recognized  as 
obligatory,  for  the  judgment  always  rests  on  anterior 
facts. 

To  this  peculiarity  of  precise  action  which  legal  rules 
have,  another  should  be  added.  They  are  presumed  to 
be  known  to  all.  No  one  may  claim  not  to  know  the 
law;  it  is  presumed  always  that  each  individual  can  easily 
take  knowledge  of  rules  contained  in  any  of  these  sources. 
If  he  does  not  know,  his  ignorance  is  his  own  fault. 
There  is  no  need  to  prove  to  the  tribunal  the  rules  of 
positive  law.  It  knows  them.  Jura  novit  curia.  Only 
facts  are  proved.  Laws  are  not. 

This  doctrine  that  the  laws  are  known  is  not  justified 
by  facts  as  to  all  kinds  of  rules.  It  may  easily  happen 
that  the  judge  does  not  know  the  common  law  or  local 
legislation.  The  common  law  is  precisely  one  in  which 
jurists  have  taken  no  part.  It  is  established  without 
them  and  independently  of  their  activity.  It  is  not  the 


408  THEORY  OF  LAW 

jurists  who  are  familiar  w'.th  the  common  law,  but  those 
who  create  and  follow  this  law  derived  from  custom. 
This  law  presents  the  peculiarity  of  changing  with  local- 
ity and  with  classes  of  individuals.  So,  the  parties  can 
more  easily  than  the  judge,  who  is  placed  outside  the 
milieu  of  these  customs,  bring  together  the  proofs  of  the 
actual  existence  of  this  law.  In  the  same  way  the  judge 
cannot  know  the  law  of  all  foreign  states.  The  consci- 
entious study  of  the  law  of  only  one  country  takes  up  a 
good  deal  of  time.  It  is  to  be  added  that  the  cases  for 
the  application  of  the  laws  of  foreign  countries  are  rare. 
So,  for  customary  law  and  for  foreign  law  the  principle 
of  jura  novit  curia  is  not  rigorously  applied. 

As  for  customary  law  its  application  was,  according  to 
some  jurists,  a  question  of  fact,  always  to  be  proved  by 
the  party  in  order  to  warrant  its  application.  Without 
this  the  judge  would  not  apply  it  even  if  he  knew  it.  In 
such  procedure  the  judge  knew  only  what  was  produced 
during  the  hearing.  Non  refert  quod  notum  sit  judici,  si 
notum  non  sit  in  forma  judicii.  This  was  Hofacker's  and 
Wenning-Ingenheim's  opinion.  It  was  the  logical  result 
of  the  conception  then  held  of  the  natural  law  as  the 
mechanical  theory  held  it.  If  the  action  of  a  rule  of  cus- 
tomary law  depended  solely  upon  a  simple  definite  ob- 
servation of  a  given  custom,  certainly  the  existence  of 
such  a  custom  is  only  a  question  of  fact,  as  is  admitted 
today  in  cases  of  trade  usages.  These  latter  are  distin- 
guished from  juridical  customs  in  that  they  carry  in 
themselves  no  opinio  necessitas.  They  are  the  result  of 
simple  observation  of  a  given  fashion  of  acting,  and  are 
only  questions  of  fact  and  not  of  law. 

The  customary  rule  thus  considered  as  a  mere  fact  de- 
pending upon  circumstances,  harmonizing  badly  with  cer- 
tain rules  of  procedure,  several  authors,  Thibaut  (1722- 
1840)  and  Hornier  (1746-1827),  the  celebrated  opponents 
of  Savigny  as  to  codification,  introduced  a  modifica- 


POSITIVE  LAW  409 

tion  of  this  idea  and  demanded  that  a  thoroughly 
notorious  custom  be  regarded  as  a  law.  If  accepted  by 
only  a  small  number  of  persons  it  might  be  regarded  as 
a  question  of  fact.  Such  a  distinction  is,  nevertheless, 
entirely  abstract.  How,  indeed,  can  this  transformation 
of  a  question  of  law  into  a  question  of  fact  be  ex- 
plained according  to  the  greater  or  less  notoriety  of  the 
custom? 

Puchta  and  Savigny  produced  a  more  accurate  concep- 
tion. They  recognized  that  the  existence  of  norms  of 
customary  law  is  always  absolutely  a  question  of  law, 
that  customary  law  is,  like  all  others,  always  supposed 
to  be  known  to  the  tribunal  ex  ojficio,  and  that  it  is  only 
in  case  of  actual  impossibility  for  the  court  to  know  the 
custom  that  it  is  permitted  to  expect  a  party  to  set  up 
the  custom  and  prove  its  existence.  But  if  they  claim 
a  custom  known  to  the  judge  there  is  evidently  no 
need  of  requiring  proofs  as  to  the  existence  of  such  a 
custom. 

The  same  rules  are  applied  to  foreign  law.  The  ques- 
tion of  its  application  is  absolutely  one  of  law.  And 
since  it  is  impossible  for  the  judge  to  know  the  law  of  the 
whole  universe  when  the  question  is  one  of  applying  a 
foreign  law  the  proofs  of  it  ought  to  be  brought  by  the 
parties  claiming  under  it. 


410  THEORY  OF  LAW 


Section  52.     Customary  (Common)  Law 

GLUECK.  Ausfuhrliche  Erlauterung  der  Pandektem  nach  Hellfeld, 
ein  Commentar,  2  Ausg.  B.  I.,  1797.  s.  442,  n.  ff. 

KLOETZER.  Versuch  eines  Beitrags  zur  Revision  der  Theorie  vom 
Gewohnheitsrecht,  1813. 

PUCHTA.     Das  Gewohnheitsrecht,  2  B.,  1828,  1837. 

BOEHLAU.  Mecklenburgisches  Landrecht.  B.  I.,  1871.  s. 
315. 

ADICKES.    Zur  Lehre  von  Rechtsquellen,  1872. 

SERGEIEVICH.  Essay  upon  the  Study  of  Customary  Law.  In  the 
Observer,  St.  Petersburg,  1882.  Nos.  1  and  2. 

SCHUPPE.     Gewohnheitsrecht,  1890. 

Customary  law  is  the  primitive  form  of  positive  law. 
None  the  less,  the  recognition  of  custom  as  an  independ- 
ent source  of  law  was  scarcely  established  before  the 
second  quarter  of  the  nineteenth  century.  Up  to  that 
time  legislation  was  thought  to  be  the  sole  independent 
source  of  law.  However,  few  went  so  far  as  to  wholly 
deny  the  obligatory  force  of  custom.  Of  those  who  did 
so  the  most  celebrated  in  the  eighteenth  century  were 
Thomasius  and  Grolman.  They  admitted  custom  only 
as  a  reason  for  affirming  the  existence  of  a  contract  or  of 
legislation  compatible  with  it.  Most  writers  recognized 
the  existence  of  customary  law-making  without  attribut- 
ing to  it  any  independent  force.  In  democratic  states, 
where  the  legislative  power  belonged  to  the  people,  cus- 
tomary law  was  deemed  merely  a  special  form  of  such 
popular  legislation.  The  obligatory  force  of  the  law  and 
of  such  custom  was  thought  to  be  the  same.  In  both 
cases  it  was  the  people's  will,  in  one  case  directly  ex- 
pressed and  in  the  other  by  facts  leading  to  an  a  posteriori 
conclusion  of  its  existence  (facia  concludentia) .  This  ex- 
ception gave  birth  to  the  notion  of  a  silently  established 
law,  lex  tacita,  and  it  was  this  idea  that  under  republican 


POSITIVE  LAW  411 

regimes  replaced  customary  law.  Such  an  explanation 
could  not  be  admitted  for  monarchical  states,  espe- 
cially for  autocratic  ones  such  as  most  European  states 
were  in  the  XVIII  century.  In  those  states  legis- 
lative power  did  not  in  fact  belong  to  the  people. 
So,  to  explain  the  obligatory  force  of  customary  law 
recourse  was  had  to  the  idea  that  the  legislator  gave 
to  custom  its  obligatory  character.  It  was  held  that 
the  custom  became  obligatory  as  a  result  of  the  leg- 
islator's assent  (consensus  imperantis).  There  was  dis- 
pute as  to  whether  this  consent  applied  to  all  the 
customs  in  general  (consensus  generalis)  or  only  to  all 
those  which  were  specially  for  some  particular  cases  (con- 
sensus specialis).  Some  required  a  special  consent  for 
all  customs  without  distinction.  Others  like  Hufeland, 
Thibaut,  and  Gluck  required  such  a  consent  only  for 
those  which  derogated  from  legislation.  Others  like  Heff- 
ner,  Baltzen  and  Kestner,  admitted  as  sufficient  in  all 
cases  a  general  consent.  Special  consent  was  sup- 
posed to  be  given  silently  by  the  very  fact  that  the  cus- 
tom could  be  applied.  It  was  thought,  on  the  other 
hand,  that  general  consent  came  directly  from  the  corpus 
juris  civilis. 

The  weakness  of  all  these  theories  is  evident.  They 
are  all  based  upon  absolutely  arbitrary  fictions,  and  all 
turn  in  the  same  vicious  circle.  The  doctrine  of  the 
identity  of  the  will  of  the  people  as  expressed  both  in  the 
customs  and  the  legislation  of  democratic  states  is  wholly 
fictitious.  In  the  most  favorable  cases  the  national 
assembly  includes  only  one  generation.  Custom,  on 
the  other  hand,  is  slowly  formed,  and  is  the  work  of 
many  generations.  Only  will  expressed  in  determinate 
forms  can  create  legislation.  Customary  law  is  built 
up  outside  of  all  forms.  It  furnishes  form  to  the 
formless. 

The  famous  sanction  of  custom  supposed  to  be  given 


412  THEORY  OF  LAW 

by  the  legislator  is  also  clearly  a  fiction,  for  it  is  not 
legislation  which  precedes  customs  in  the  historic  se- 
quence, but  quite  the  contrary.  Customs  appeared  long 
before  legislation.  It  is  therefore  impossible  to  main- 
tain that  legislation  serves  as  the  basis  of  customs.  The 
precise  contrary  is  the  truth.  Sovereign  power  at  the  be- 
ginning rested  entirely  upon  custom.  As  to  the  general 
consent  which  some  authors  think  to  find  in  the  corpus 
juris  ciwlis,  it  is  sufficient  to  recall  that  the  corpus  itself 
cannot  be  considered  in  our  time  as  having  anywhere 
legislative  force.  Accepted  in  practice,  but  having  be- 
hind it  no  executive  force  except  some  text  of  legislative 
enactment,  it  must  be  considered  itself  as  merely  custo- 
mary law  for  modern  nations. 

The  historical  school,  and  especially  among  the  authors 
of  that  school,  Puchta,  gave  the  finishing  stroke  to  all 
these  theories.  His  Das  Gewohnheitsrecht  remains  to 
this  day  the  best  study  of  the  subject.  In  it  Puchta  es- 
tablished the  new  theory.  He  not  only  recognized  for 
customary  law  a  wholly  independent  significance,  inde- 
pendent of  any  harmony  with  the  legislative  will,  but 
that  it  is  an  antecedent  condition  for  legislation.  The 
foundation  of  customary  law,  said  he,  is  the  natural  gen- 
erality of  the  conviction  of  the  nation's  purpose.  This 
immediate  national  conviction  finds  expression  in  cus- 
toms, and  its  realization  in  laws  is  therefore  by  the  estab- 
lishment at  the  beginning  of  customary  law. 

Manners  and  customs  form  the  primitive  law  of  peo- 
ples, just  as  some  kind  of  a  system  is  the  primitive  law 
of  jurists,  and  verbal  expression  of  the  legislator.  If  cus- 
tomary law  stands  in  such  strict  and  necessary  connec- 
tion with  the  natural  conception  of  the  nation,  and  is  the 
immediate  result  of  the  latter's  activity  in  the  legal 
direction,  can  it  be  asked,  then,  whether  custom  has 
independent  force  as  law,  or  why  it  has?  Customary 
law,  if  this  is  the  case,  acts  for  the  same  reason  as 


POSITIVE  LAW  413 

all  law  does,  the  reason  which  produces  this  conviction 
of  nationality  and  that  there  are  such  things  as  peo- 
ples. If  the  existence  of  a  unified  people  is  in  fact 
recognized,  some  activity  must  be  attributed  to  the 
genius  of  that  people,  and  consequently  some  concep- 
tion of  moral  and  legal  freedom  be  formed,  and  since 
customary  law  is  nothing  but  this  conviction  in  its  im- 
mediate and  concrete  form,  the  existence  of  custom- 
ary law  is  inseparably  bound  up  with  the  people's  exist- 
ence. 

There  is  still  less  need  of  direct  proof  that  the  force  of 
customary  law  does  not  come  from  connection  with  the 
other  sources  of  law;  for  the  establishment  of  law  imme- 
diately through  legislatures  and  the  activity  of  jurists, 
presupposes  an  immediately  established  law  through  cus- 
tom giving  them  authority.  For  if  there  were  no  nation 
and  no  immediate  consciousness  of  nationality  there 
would  be  no  state  and  no  jurists,  and  by  consequence 
no  juristic  or  enacted  law;  so,  the  very  essence  of  these 
forms  of  law  affirms  the  force  of  previously  estab- 
lished customary  law,  and  there  can  be  no  doubt  as  to 
this  point. 

So  Puchta  attributed  to  customary  law  an  absolutely 
independent  capacity,  but  only  so  far  as  related  to  the 
customs  of  an  entire  people.  Customs  of  this  kind  are 
always  relatively  rare.  Local  customs,  on  the  contrary, 
are  quite  numerous.  This  observation  was  made  by 
Unterholzer  in  his  critique  of  Puchta's  theory,  and  by 
Muhlenbruch.  Savigny,  also,  thought  to  correct  Puchta's 
doctrine  by  recognizing  the  unity  of  the  people  as  a  neces- 
sary common  basis  for  the  formation  of  the  custom  and 
a  ground  for  its  force  as  law;  but  that  just  as  legislative 
power  can  promulgate  laws  at  the  same  time  for  the 
whole  state  and  for  special  localities  in  it,  in  the  same 
way  the  people's  immediate  consciousness  of  law  may 
take  the  form  of  customs  for  distinct  localities,  as  well  as 


414  THEORY  OP  LAW 

for  distinct  classes,  which  are  considered  as  organic  parts 
of  the  nation. 

Savigny  in  formulating  this  theory  started  with  this 
idea,  recognized  by  the  historic  school,  that  the  unity  of 
a  people  is  not  a  result  of  historic  evolution  but  some- 
thing innate  and  which  existed  from  the  beginning.  This, 
however,  is  not  what  history  teaches  us.  As  Ser- 
geievich  has  shown,  it  is  not  general  customs  which  are 
found  at  the  origin  of  nations,  but  rather  special  ones, 
and  only  little  by  little  do  they  become  general.  And 
again,  as  is  admitted  elsewhere,  Savigny's  theory  does 
not  explain  the  formation  of  certain  customs,  as  in  ec- 
clesiastical law,  and  certain  international  customs 
which  cannot  in  any  way  be  admitted  as  customs  taking 
their  origin  spontaneously  from  the  general  unity  of  the 
people. 

For  all  these  reasons  the  doctrine  of  the  historical 
school  ought  to  be  regarded  as  insufficient.  In  very  re- 
cent times  the  birth  of  a  new  conception  is  to  be 
observed,  one  which  considers  that  customs  are  obliga- 
tory simply  by  the  fact  of  their  long  standing.  This  is 
notably  Adickes'  opinion.  According  to  him,  the  very 
long  existence  of  a  custom  compels  us  to  recognize  its 
obligatory  character.  This  is  explained  first  of  all  by 
the  fact  that  for  a  legal  judgment  the  existence  of  some 
definite  rules  is  generally  the  most  important  point  and 
it  matters  relatively  little  just  what  the  rules  are.  Be- 
sides this,  it  is  necessary  to  consider  that  in  most 
cases  customs  are  conformed  to  some  end,  since  they  are 
the  work  of  individual  interests.  Finally,  time  has,  in 
general,  the  quality  of  giving  a  special  stability  in  man's 
eyes. 

This  opinion,  however,  cannot  be  accepted.  In  seeking 
to  escape  the  too  exclusive  result  of  the  historic  doctrine, 
Adickes  has  fallen  into  the  opposite  extreme.  The  his- 
toric school  believed  that  the  creation  of  obligatory  cus- 


POSITIVE  LAW  415 

toms  was  only  possible  as  a  result  of  the  unity  of  a 
people.  Adickes  did  not  regard  the  fact  that  the  custom, 
considered  altogether  as  law  and  not  as  habitude,  is  not 
simply  a  manner  of  conduct  long  observed  but  it  is  only 
such  a  particular  manner  as  is  observed  in  a  given  human 
society  as  obligatory. 

The  existence  of  unvarying  habits  among  the  men  with 
whom  we  are  in  relation  presents  this  advantage,  their 
fixedness  compels  us  to  accept  them  as  they  are,  even  if 
this  causes  some  trouble.  But  a  mere  individual  habi- 
tude is  not  a  custom,  and  its  duration  cannot  be  consid- 
ered as  the  index  of  the  obligatory  character  of  a  rule. 
Custom,  as  we  have  already  shown,  is  one  of  the  forms 
of  consciousness  of  a  law  which  has  become  objective.  A 
man  in  expressing  himself  uses  the  forms  of  grammar 
and  rules  of  style  elaborated  by  a  people's  common  life, 
and  at  the  same  time  his  language  becomes  not  merely 
the  expression  of  his  own  ideas  but,  also,  a  part  of  the 
popular  language  and  a  vehicle  for  expressing  the  ideas 
of  that  people.  In  the  same  way  a  man  expressing  his 
ideas  as  to  law  uses  forms  elaborated  by  the  common 
life  in  society;  these  forms  are  taken  up  and  become  the 
expression  of  the  collective  consciousness  of  law, 
that  is  to  say,  they  are  transformed  into  juridical 
customs.  When  I  act  conformably  to  custom,  because  it 
is  custom,  my  consciousness  of  law  is  thereby  expressed 
in  a  manner  which  conforms  to  the  consciousness  of 
law  on  the  part  of  others  who,  themselves  also,  observe 
the  same  custom.  If  it  were  otherwise  there  would  be 
no  custom.  For  this  reason  the  custom  exhibits  a  jurid- 
ical norm  which  is  accepted  not  by  me  alone,  but  by  all 
who  are  members  of  the  same  society  with  me.  In  other 
words,  not  because  the  practice  is  ancient  is  it  obligatory, 
but  because  it  is  common  in  that  character  to  all  the 
society. 

Some  analogous  discussions  have  arisen,  also,  as  to  the 


416  THEORY  OF  LAW 

origin  of  customs.  Customary  law  forms  little  by  little 
through  the  very  life  of  society  and  outside  of  fixed 
forms,  and  for  this  reason  controversies  about  it  are  so 
numerous.  We  cannot  directly  observe  the  formation  of 
custom.  We  can  determine  its  origin  only  by  more  or 
less  complex  considerations.  Till  Puchta's  time  the  me- 
chanical theory  of  the  formation  of  customs  prevailed. 
This  theory  explained  the  origin  simply  by  the  observ- 
ance of  the  same  rule  in  several  identical  cases.  At  that 
time  any  other  explanation  was  difficult,  as  we  recall 
that  the  obligatory  character  of  the  custom  was  supposed 
to  be  due  to  the  legislator's  recognition  of  it.  The  jurid- 
ical character  of  the  custom  was  considered  in  this  the- 
ory as  coming  from  above,  from  the  legislator's  will;  but 
the  legislator  can  give  obligatory  force  to  a  set  of  uniform 
rules  drawn  up  at  hazard  and  which  have  nothing  to  do 
with  customs. 

This  explanation  fell  of  itself  with  the  recognition  in 
customs  of  an  independent  capacity  as  laws.  It  was  neces- 
sary to  find  in  the  custom  itself  and  in  the  conditions  of 
its  formation  the  basis  of  its  obligatory  character.  In- 
stead of  the  mechanical  theory,  Puchta  set  up  a  spiritu- 
alistic one  of  the  origin  of  customary  law,  absolutely 
opposed  to  the  old  conception.  He  affirms  that  the  ob- 
servance of  a  rule  does  not  make  of  it  a  customary  law. 
Its  observance  is  only  the  material  expression  which 
shows  us  its  existence.  The  rule  existed  before  it  was 
followed,  and  was  already  regarded  as  an  obligatory 
norm.  The  juridical  custom  is  distinguished  from  the 
simple  habit  in  that  it  is  an  external  and  conscious  ex- 
pression of  the  rule  which  existed  already  in  the  national 
consciousness  of  legal  rules.  Simple  habits  are  those 
created  by  a  chance  uniformity  unconsciously  introduced 
into  the  conduct  of  individuals  in  identical  cases.  Savigny 
early  showed  that  Puchta's  theory  could  not  be  admitted 
without  some  reserves.  There  are,  said  Savigny,  some 


POSITIVE  LAW  417 

customs  whose  formation  cannot  be  explained  by  the 
conscious  application  of  an  already  formed  juridical  con- 
ception. 

Such,  for  example,  are  the  terms  to  be  used  in  making 
a  formal  contract,  and  the  number  of  witnesses  neces- 
sary. The  juridical  idea  can  only  indicate  that  it  is 
desirable  to  have  the  terms  and  the  number  of  witnesses 
appropriately  fixed,  but  cannot  itself  precisely  determine 
either.  It  is  evident  that  no  legal  principle  can  deter- 
mine just  how  many  witnesses  should  be  present  at  a 
given  act.  For  this  reason  Savigny  thought  that,  besides 
customs  born  of  the  conscious  application  in  private  cases 
of  a  rule  existing  already  in  the  popular  consciousness, 
there  were  other  juridical  customs,  established,  notwith- 
standing their  obligatory  character,  by  the  fortuitous  and 
unconscious  observance  merely  as  habits  of  some  particu- 
lar fashions  of  acting. 

It  is  easily  understood  that  Savigny's  correction  of 
Puchta's  theory  does  not  correct,  while  it  shows  clearly 
the  impossibility  of  explaining  the  origin  of  juridical  cus- 
toms by  this  theory.  The  theory  in  reality  explains 
nothing.  It  considers  the  juridical  norm  as  the  external 
expression  of  a  norm  already  existing  in  the  conscious- 
ness of  the  people,  but  does  not  explain  how  any  such 
popular  conscience  is  formed  or  exists.  Has  it  more  real- 
ity than  the  legislator's  assent? 

If  the  general  explanation  of  the  origin  of  law  before 
given  in  this  book,  is  accepted,  that  of  customary  law  is 
very  simple.  In  setting  forth  our  conception  of  the  origin 
of  law,  it  was  not  possible  to  lay  aside  customary  law 
which  is  its  primitive  form.  We  were  compelled  to  rec- 
ognize that  the  commencement  and  the  continuance  for 
a  time  of  the  custom  resulted  unconsciously,  and  that  it 
became  "juridical"  only  when  to  its  observance  was 
added  the  consciousness  of  its  obligatory  character.  The 
consciousness  of  its  obligatory  character  would  appear 


418  THEORY  OF  LAW 

as  a  consequence  of  the  tendency  we  have  to  believe 
that  identical  conditions  always  produce  identical  acts. 
As  ndividuals,  people  so  believe  each  time,  in  advance 
of  observation,  of  the  order  already  established,  and 
whenever  this  order  is  violated,  it  produces  reaction.  If 
this  opinion  is  accepted,  the  explanation  of  the  origin  of 
all  customs  is  easy.  They  are  inevitable. 

The  history  of  the  theories  as  to  the  marks  of  the  ex- 
istence of  a  juridical  custom  is  equally  interesting.  The 
glossators  required  only  two  conditions,  a  long  enough 
time,  and  reasonableness.  Then  the  number  of  con- 
ditions became  greater.  Barthol  counted  three,  longum 
tempus,  tacitus  consensus  populi,  frequentia  actuum.  Their 
successors  indicate,  besides,  quod  consuetude  sit  introducta 
non  erronea  sed  cum  rations  et  quod  sit  jus  non  scriptum. 
The  number  of  required  conditions  went  on  always 
increasing,  and  at  the  commencement  of  this  cen- 
tury they  counted  eight,  rationabilitas,  consuetudinis, 
diuturnitas  temporis,  consuetudo  contradicto  judicio  firmata, 
pluritas  actuum,  uniformitas  actuum,  continuitas  actuum, 
actus  publici,  actus  consuetudinis  introductivi,  opinio 
necessitatis. 

The  modern  jurisconsulti,  like  Bohlau  for  example,  re- 
quire, as  formerly  Placentin,  only  two  conditions, — first, 
the  .custom  must  express  a  juridical  conviction;  second,  it 
must  be  old  enough.  The  controverted  question  is  to 
know  what  is  the  connection  between  custom  and  law. 
Can  or  cannot  the  custom  abrogate  the  law?  Has  it  that 
force  which  is  called  derogatory? 

No  law,  no  rule,  being  able  to  claim  eternal  existence, 
the  possibility  must  be  recognized  of  applying  deroga- 
tions by  future  rules,  legislative  or  customary.  But 
there  is  sometimes  in  legislation  a  prohibition  against 
applying  customary  law  either  general  or  outside  of  the 
cases  indicated.  Can  such  a  prohibition  take  away  the 
derogatory  power  of  customary  law?  Such  prohibitions 


POSITIVE   LAW  419 

make  very  difficult,  to  be  sure,  the  development  of  cus- 
toms derogatory  to  the  law.  Tribunals  as  well  as  inter- 
ested parties  can  by  supporting  themselves  with  such  a 
prohibition  very  easily  prevent  the  application  of  cus- 
toms. But  if  the  custom  developed  all  the  same  de- 
spite the  prohibition,  it  could  not  be  denied  obligatory 
force. 

It  goes  without  saying  that  the  formation  of  such  a 
custom  is  admissible  only  where  the  violated  law  is  in 
the  general  opinion  unreasonable  and  unjust  and  with 
the  condition  that  such  opinion  is  absolutely  shared  by 
everybody,  by  the  tribunals,  as  well  as  the  persons  in- 
terested. On  these  conditions  surely  no  one  can  doubt 
the  obligatory  force  of  a  custom  which  abrogates  an  unjust 
law  recognized  as  such  by  everybody. 


420  THEORY   OF  LAW 


Section  53.     Judicial  Usage 

IHERING.  Unsere  Aufgabe.  Gesammelte  Aufsatze  I,  1881.  ss. 
1-46. 

MOUROMTZEV.  The  Courts  and  the  Civil  Law.  Juridical  Mes- 
senger (Russian),  1880.  pp.  337-393. 

MAINE'S  Ancient  Law.     pp.  25-34. 

UNGER.  System  des  Oesterreichischen  allgemeinen  Privatrechts. 
3  Aufl.,  1878.  B.  II.  s.  151-257. 

BUELOW.     Gesetz  Richteramt.     1895. 

FRANKEN.     Vom  Juristenrecht.     1889. 

Judicial  usage  offers  a  good  many  resemblances  to 
custom.  Just  as  in  customs,  in  judicial  usage  legal  rules 
are  not  expressed  under  any  general  form  but  only 
under  a  form  applicable  to  special  and  distinct  cases. 
It,  too,  supposes  that  the  rule  before  being  expressed 
in  judicial  conclusions  was  obligatory.  It,  no  more 
than  custom,  fixes  the  period  of  the  rule's  action  and  it 
is  not  surprising  that  for  all  these  reasons  a  good  many 
authors,  perhaps  a  majority  in  our  time,  have  consid- 
ered judicial  usage  as  a  special  form  of  customary 
law.1 

There  are  serious  objections,  however,  to  such  a  con- 
clusion. Judicial  usage  and  precedent  occupies  an  in- 
termediate place  between  custom  and  legislation.  It 
presents  points  in  common  with  each.  Like  legisla- 
tion, judicial  usage  is  consciously  shaped.  While,  prim- 
itively, custom  would  appear  as  simple  habit,  wholly 
unconscious  of  legal  relation  and  entirely  outside  of 
all  regulation,  judicial  usage  and  decision  is,  like  legis- 
lation, the  result  of  a  conscious  effort  towards  the  ap- 

iWachter,  "Pandekten,"  I.  1880.  s.  112.  Stobbe,  "Handbuch  des  deutschen 
Rechts,"  I.  1871.  s.  146.  Malichev,  "Course  in  Russian  Civil  Law,"  I.  1878. 
p.  85.  Luders,  "Das  Gewohnheitsrecht."  Bohlau,  " Mecklenburgisches  Land- 
recht,"  I.  1871.  s.  320. 


POSITIVE   LAW  421 

plication  of  a  legal  rule.  The  custom,  too,  does  not 
become  a  "legal"  one,  a  law,  until  to  the  observance  of 
the  rules  which  it  prescribes  is  added  the  consciousness 
of  its  utility;  but  the  matter  of  the  custom  is  furnished 
always  by  habit.  It  is  formed  unconsciously.  The 
legal  consciousness  which  transforms  a  simple  habit 
into  a  juridical  custom  finds  a  material  ready  made. 
On  the  contrary,  the  judgments  of  courts  which  make 
up  judicial  usage  are  absolutely  conscious  acts.  The 
matter  of  each  judgment  is  elaborated  consciously  and 
precisely  in  order  to  regulate  the  relations  of  the  parties 
by  law. 

Another  difference  between  judicial  usage  and  cus- 
tom is  that,  like  legislation,  judicial  usage  is  not  cre- 
ated by  society  or  by  some  distinct  class,  but  by  an 
institution.  This  is  why,  differing  in  this  respect  from 
custom,  judicial  usage  has,  like  legislation,  a  recog- 
nized authentic  legal  form.  There  are  recorded  au- 
thentic orders  and  judgments.  Let  us  observe,  too, 
that  like  legislation,  judicial  precedents  ordinarily  ap- 
pear in  a  written  form,  while  custom,  in  the  beginning 
at  least  knows  nothing  of  writings. 

There  are,  then,  between  customs  and  judicial  usage 
such  differences  that  it  is  impossible  to  class  them 
together  and  regard  judicial  usage  as  a  special  form 
of  custom.  But  in  refusing  to  identify  them  are  we 
not  compelled  to  deny  the  existence  of  judicial  usage 
as  an  independent  source  of  law?  Is  not  the  sole  mis- 
sion of  the  tribunal  to  declare  and  apply  existing  law? 
Charged  with  determining  special  cases,  ought  it  not 
to  limit  itself  merely  to  applying  the  legislation  in 
force  when  the  action  was  brought  before  it?  To  rec- 
ognize judicial  practice  as  an  independent  source  of 
law,  is  this  not  entirely  the  same  thing  as  to  recog- 
nize a  right  in  the  tribunal  to  judge,  not  according 
to  law  or  custom,  but  according  to  its  own  will,  and 


422          .  THEORY  OF  LAW 

to  establish  thus  the  uncontrolled  arbitrament  of  the 
judges  instead  of  a  general  obligatory  rule? 

If  there  is  no  doubt  that  the  tribunal  ought  not 
to  decide  at  its  own  pleasure  but  according  to  law 
or  custom,  we  cannot  on  that  account  deny  all  crea- 
tive value  to  judicial  usage  and  precedents.  The  gov- 
ernment in  constitutional  states  is  itself  limited  to  the 
terms  prescribed  in  the  legislation  put  out  by  the  two 
legislative  houses.  However,  its  acts,  decretals,  orders, 
rules  of  procedure,  are  an  independent  source  of  law. 
In  the  same  way  in  many  states  the  two  houses  have 
their  power  limited  by  constitutions  which  they  have 
no  right  to  change,  and  meanwhile  the  ordinary  laws 
are  recognized  as  a  source  of  law.  We  see  the  same 
phenomena  develop  in  connection  with  judicial  prac- 
tice. Just  as  ordinary  laws  or  administrative  rules 
have  of  necessity  a  creative  capacity,  the  tribunals 
themselves  are  not  strangers  to  the  creative  genius. 
The  tribunal  which  decides  practical  cases,  problems 
which  require  very  often  extremely  varied  and  diverse 
legal  conceptions,  applies  necessarily  the  legislation  in 
force.  Otherwise  it  could  never  find  the  directing 
thread  in  the  casuistical  labyrinth. 

But,  in  fact,  legislation  is  not  formed  en  bloc.  It 
is  formed  gradually,  and  its  parts  have  been  shaped 
under  the  influence  of  diverging,  even  of  opposing  ideas. 
The  same  thing  to  a  certain  extent  is  true  of  the  dif- 
ferent parts  of  the  same  legislative  act,  since  all  laws 
are  results  of  compromise  between  the  extremely  diver- 
gent tendencies  which  control  government  or  parlia- 
ment. A  legislative  act  is  very  rarely  the  complete 
expression  of  a  single  idea.  If  logical  unity  is  to  be 
found  in  it,  it  is  the  tribunal's  part  to  develop  that 
unity.  This  is  certainly  a  creative  activity.  Legisla- 
tive institutions  have  their  field,  a  comprehension  in 
which  propositions  vary  greatly.  The  same  thing  which 


POSITIVE  LAW  423 

under  one  conception  might  be  a  general  rule,  might 
very  well  under  another  view  be  regarded  as  only  a  strin- 
gently limited  exception.  Independently  of  this,  in  all 
legislation  we  find  contradictions.  They  can  be  dealt 
with  in  various  ways,  and  the  choice  made  by  judicial 
usage  among  the  methods  has  also  a  certain  creative  force. 

To  bring  legislative  institutions  into  a  logical  whole, 
to  avoid  the  contradictions  which  they  present  and  com- 
plete their  lacuna,  the  tribunal  uses  general  principles  of 
law  and  supports  itself  by  scientific  reasoning.  This  has 
led  a  good  many  writers,  particularly  among  the  ancients, 
to  regard  legal  science  as  an  independent  source  of  law. 
But  in  this  branch  of  law  contradictions  were  numerous, 
and  it  became  necessary  to  set  up  a  more  general  rule 
that  the  judge  must  base  his  decision  upon  the  com- 
bined voices  of  the  most  general  opinion  (commnnis 
opinio  doctorum). 

But  how  find  out  this  opinion?  What  is  the  com- 
mon opinion  of  all  the  learned?  Por  this  purpose  there, 
were  several  rules  of  an  essential  mechanical  character. 
The  communis  opinio  doctorum  was  that  which  was  held 
by  seven  savants,  or  better  yet,  that  which  Barthol 
and  the  Glosses,  that  is  to  say,  the  glossa  ordinaria, 
admitted.  If  this  means  gave  no  result,  then  the  opin- 
ion of  the  oldest  savants  was  to  be  admitted.  A  Jurist 
then,  had  more  authority  the  older  he  was.  Such  rules 
adopted  in  the  middle  ages  could  not  remain  in  force. 
Most  authors,  perceiving  how  impossible  it  was  to  re- 
place them  with  other  rules  for  getting  an  infallible 
means  for  choosing  between  contradictory  scientific  opin- 
ions, have  very  logically  concluded  that  science  was 
not  an  independent  source  of  law. 

The  historical  school,  however,  found  this  to  be  an 
extreme  opinion.  The  naive  rules  of  the  middle  ages, 
based  upon  the  assent  of  a  greater  or  less  number  of 
jurists,  must  assuredly  be  set  aside.  It  was  not  nee- 


424  THEORY  OF  LAW 

essary,  however  to  conclude  from  this  that  science  in 
general  could  not  be  regarded  as  a  source  of  law. 

The  representatives  of  the  historical  school  have  not 
found  any  rule  for  choosing  between  such  contradic- 
tory opinions.  If  there  is  no  possibility  of  a  correct 
choice,  the  rules  established  by  science  alone  have  no 
direct  application.  Consequently,  science  cannot  be  rec- 
ognized as  a  source  of  law  in  the  technical  sense  in  which 
customs,  judicial  usage  and  legislation  are;  that  is  to 
say,  as  an  absolute  index  to  the  obligatory  character 
of  a  rule.  It  is  only  judicial  application  which  fur- 
nishes the  mark  of  an  obligatory  norm.  In  other  words, 
it  is  not  theory,  but  the  practice  that  embodies  a  given 
theory,  which  is  an  independent  source  of  law. 

In  recognizing  judicial  practice  as  an  independent 
source  of  law  we  must  observe  that  it  is  not  necessary 
to  conclude  that  a  decision  once  rendered  binds  the 
tribunal  forever.  If  every  law  can  be  replaced  by  a 
new  one,  surely  judicial  usage  on  its  side  cannot  be 
condemned  to  perpetual  rigidity.  But  on  the  other 
hand,  the  rigidity  which  judicial  practice  has  and  the 
precision  of  its  rules  have  certainly  a  great  value. 

One  of  the  first  conditions  of  justice  is  that  the 
laws  be  applied  equally  for  all,  but  such  a  thing 
would  be  impossible  without  a  durable  and  steady, 
uniform  system  of  administering  justice.  For  this  rea- 
son the  tribunal  is  always  ready  to  apply  again  a  prin- 
ciple previously  accepted.  It  requires  very  important 
reasons  to  produce  a  change  in  the  jurisprudence  which 
a  given  tribunal  has  recognized,  and  it  ought  to  be 
admitted  on  principle  that  a  rule  once  established  should 
be  followed  in  later  judgments  of  the  same  tribunal. 


POSITIVE  LAW  425 


Section  54.    Legislation 

SAVIGNY.     System  I.     ss.  16-20. 

ZACHARIAE.     Vicrzig  Biicher  vom  Staate.     B.  IV.     s.  1. 
BOEHLAU.     Mecklenburgisches  Landrecht.     B.  V.     s.  283. 
JELLINEK.     Gesetz  und  Verordnung.     1887. 
SELIGMANN.     Der  Begriff  des  Gesetzes.     1886. 
HAENEL.     Gesetz  im  formallen  und  Materialen  Sinne.     1888. 
KORKUNOV.     Executive  Orders  and  Legislation.     1894.     pp.  227- 
228. 

The  expression  of  legal  rules  in  customs  and  judicial 
determinations  has  always  a  casuistical  and  indefinite 
character.  Legal  customs  as  well  as  judicial  precedents 
are  gradually  formed  to  the  extent  that  there  is  call 
for  the  application  of  legal  rules  to  special  and  definite 
cases.  Legal  rules  cannot  therefore  find  in  these  forms 
an  expression  which  is  at  the  same  time  precise  and 
general.  These  are  defects  that  become  more  and  more 
strongly  felt  as  the  developments  of  social  life  become 
more  complex  and  varied.  Governmental  power,  de- 
signed to  uphold  and  protect  law,  cannot  accept  such 
forms  as  legal  rules.  To  the  degree  that  it  becomes 
strong  enough  and  firmly  enough  established,  it  pro- 
ceeds to  replace  these  indefinite  principles  of  customary 
law  and  judicial  precedents  by  more  precise  and  fixed 
rules  of  legislation. 

At  first  this  is  done  only  as  regard  rules  that  especially 
concern  the  government  and  its  organs  which  are  charged 
with  applying  them.  The  relations  of  individuals  with 
each  other,  those  having  to  do  with  property,  those 
of  the  family,  such  are  the  things  which  customary  law 
controls  the  longest.  But  gradually  as  legislation  goes 
on  little  by  little  increasing  in  scope,  it  comes  to  subject 
to  itself  all  the  branches  of  the  law,  and  thus  becomes 
the  general  form  in  which  the  law  clothes  itself,  and 


426  THEORY  OF  LAW 

custom  and  judicial  precedent  become  only  subor- 
dinate principles  of  law,  secondary  and  almost  excep- 
tional. 

Legislation,  in  the  large  sense  of  the  word,  is  every 
legal  rule  established  by  direct  action  of  governmental 
organs.  It  is  defined  often  as  the  will  of  the  organs  of 
governmental  power,  or  of  the  state.  Such  a  definition 
is  too  broad.  The  organs  of  the  state's  power  may  ex- 
press their  will  without  any  intention  of  giving  to  the 
emitted  rule  the  force  of  an  obligatory  norm  for  all  the 
citizens.  Such,  for  example,  are  the  words  which  termi- 
nate the  manifesto  announcing  the  enfranchisement  of 
the  peasant.  "Make  the  sign  of  the  cross,  believing 
people,  and  call  down  upon  you  the  blessings  of  God 
upon  your  free  labor,  with  the  prosperity  of  your  house 
and  your  happiness  among  your  fellows." 

On  the  other  hand,  the  definition  of  legislation  as  a 
direct  expression  of  will  cannot  be  accepted  because  it 
is  too  narrow.  Even  if  the  legislative  act  contains  only 
one  general  rule,  it  cannot  be  said  that  all  its  special 
consequences  are  equally  contained  and  expressed  in 
the  law.  Even  if  it  interdicts  such  and  such  actions 
in  carefully  determined  cases,  the  same  actions  are  au- 
thorized in  all  other  cases.  The  law  acts,  then,  not  only 
within  the  directly  prescribed  limits,  but  also  within  the 
limits  of  that  which  is  the  natural  consequence  of  the 
orders  put  forth,  that  is,  in  many  cases,  beyond  any 
human  foresight  or  any  human  will. 

Very  many  writers  have  thought  it  worth  while  to 
put  back  into  the  definition  of  legislation,  the  idea  that 
it  is  promulgated  only  after  a  procedure  instituted  pre- 
cisely for  that  purpose.  This  is  entirely  superfluous. 
If  the  required  procedure  necessary  to  make  what  will 
be  recognized  as  an  obligatory  rule  is  not  followed,  there 
will  be  no  law,  but  only  a  personal  command  of  the 
person  or  persons  emitting  it  as  representatives  of  gov- 


POSITIVE  LAW  427 

ernmental  power.  If  such  representative  has  not  ob- 
served the  required  forms,  he  cannot  be  recognized  as 
acting  in  the  name  of  the  state.  The  definition  we 
have  given  of  legislation  as  a  rule  established  by  gov- 
ernmental organs,  supposes  as  already  established  regular 
forms  for  acts  in  the  name  of  the  state.  In  this  definition 
we  have  said  nothing  about  publication,  which  has  been 
by  many  writers  recognized  as  an  essential  attribute  of 
legislation.  But,  in  truth,  history  shows  us  many  exam- 
ples of  unpublished  laws.  Among  ourselves  today  the 
fundamental  laws  provide  a  category  of  legislation  which 
remains  secret. 

As  to  the  question  of  what  is  the  basis  of  the  obliga- 
tory character  of  legislation,  there  is  no  firmly  settled 
theory  recognized  by  the  whole  world.  The  represen- 
tatives of  the  natural  law  school  have  recognized  as 
such  basis  an  implied  agreement  among  men.  Every 
citizen,  they  say,  ought  to  obey  the  law  because  he 
holds  a  part  in  such  a  contract.  Certain  ones,  like 
Hobbes  and  Grotius,  add,  also,  that  such  an  agreement 
might  operate  to  confer  upon  some  given  person  or  in- 
stitution the  right  to  make  laws. 

This  opinion  in  the  second  half  of  the  eighteenth  cen- 
tury was  replaced  by  another  according  to  which  each 
distinct  legislative  act  was  regarded  as  the  expression 
of  the  general  will.  Rousseau  and  Kant  and  their  suc- 
cessors shared  this  opinion.  This  theory  supposes  that 
every  agreement  is  obligatory  in  itself  and  that  there 
is  no  need  of  proving  this  obligatory  character,  since 
it  is  a  priori  evident. 

In  reality,  we  often  see  facts  wholly  the  other  way. 
All  agreements  are  not  obligatory,  but  only  those  which 
conform  to  the  law's  requirements.  By  consequence, 
it  is  precisely  the  law  which  furnishes  the  basis  of  their 
obligation.  In  all  cases  to  attribute  to  the  law's  oblig- 
atory character  such  a  foundation  as  contract,  is  a  pure 


428  THEORY  OF  LAW 

fiction,  and  quite  often  we  see  laws  which  do  not  at  all 
have  the  approbation  of  society. 

The  historical  school  considered  as  the  basis  of  the 
law's  obligatory  force  the  legal  consciousness  of  the 
people.  But  this,  too,  is  a  fiction,  as  much  so  as  that 
which  made  the  obligation  rest  on  contract.  We  can- 
not deny  the  existence  of  a  conception  of  law,  common 
to  the  nation,  but  it  is  impossible  to  affirm  that  all  laws 
express  only  this  conception  which  the  people  have  as 
to  law.  Legislation  may  not  agree  with  this  conception, 
and  may  even  contradict  it. 

In  states  whose  population  comprises  different  races 
not  yet  united  by  political  life,  such  a  contradiction  be- 
tween legislation  and  the  notion  of  law,  prevailing  among 
some  of  the  populations  in  the  state,  are  even  necessary. 
For  all  legislation  independently  of  its  matter  has  oblig- 
atory force. 

A  basis  for  the  obligatory  character  of  legislation  re- 
mains, then,  to  be  sought.  Legislation  is  set  up  by  the 
organs  of  power  who  can  on  the  one  side  constrain  in- 
dividuals by  force  to  submission,  and  who  have  on  the 
other  hand  an  authority  in  the  eyes  of  the  public  which 
often  suffices  to  make  their  rules  observed. 

Legislation  is  established  for  the  most  part  by  those 
organs  of  governmental  power  which  have  under  their 
direction  the  organs  charged  with  practically  applying 
it.  The  same  state  has  usually  several  sets  of  organs, 
and  we  can  thus  distinguish  legislation  into  groups  ac- 
cording to  the  organ  which  produces  it. 

The  most  important  juridical  rules  are  confided  to  a 
special  legislative  institution,  which  concerns  itself  only 
with  legislation  and  the  care  of  the  administration.  The 
less  important  rules  are  the  work  of  the  executive  power 
properly  so  called.  We  shall  divide,  then,  into  two 
groups  the  rules  established  by  these  two  branches  of 
authority:  legislation  (zakon,  lex,  loi,  Gesetz)  and  rules 


POSITIVE   LAW  429 

or  orders  (ukazi,  decrets,  Verordnungen).  Since  the  direc- 
tions of  the  executive  power  must  be  carried  out  in  con- 
formity with  legislation,  and  such  execution  is  subordi- 
nated to  the  legislative  body,  executive  rules  and  orders 
are  subject  to  enacted  law.  The  order  is  only  valid  as 
long  as  it  does  not  contradict  law. 

This  formal  distinction  of  legislation  and  "orders" 
according  to  the  different  powers  which  establish  them, 
is  found  at  the  bottom  of  the  matter  out  of  which  they 
are  made.  The  most  important  legal  rules,  those  which 
relate  to  the  most  important  interests  of  the  citizens, 
should  have  their  assent,  or  at  least  that  of  their  repre- 
sentatives. The  details  may  be  arranged  by  the  execu- 
tive or  its  departments  more  competent  for  such  tech- 
nical questions. 

This  distinction,  however,  between  laws  and  orders 
cannot  be  formulated  in  a  precise  manner,  since  it  is 
impossible  to  find  any  external  measure,  any  absolute 
outside  mark  for  distinguishing  the  more  important  from 
the  less  so.  So,  everywhere  in  constitutional  states,  it 
has  been  established  in  practice  that  an  executive  order 
cannot  nullify  a  legislative  act.  By  consequence,  all 
matters  already  held  by  the  legislative  remain  within 
its  exclusive  competency,  at  least  so  far  as  it  does  not 
authorize  the  executive  to  regulate  such  matter  by 
orders. 

For  all  those  questions,  on  the  other  hand,  which  have 
not  been  regulated  by  legislation,  it  is  the  executive's 
duty  to  provide  as  need  arises,  by  orders.  This  general 
rule  establishing  the  relations  between  legislation  and 
executive  orders,  suffers,  however,  one  exception.  In 
case  of  extreme  necessity,  when  the  safety  of  the  state 
is  endangered,  it  is  impossible  to  employ  the  legislative 
method.  In  such  a  case  the  executive  can  take  meas- 
ures and  make  orders  contrary  to  law,  but  the  ministers 
are  responsible  to  the  houses  of  the  legislature.  Legis- 


430  THEORY  OP  LAW 

lation  and  executive  orders  can  each  in  their  turn  be 
divided  according  to  the  organs  producing  them.  In  a 
good  many  states  legislation,  properly  so  called,  the  rules 
made  by  organs  other  than  those  of  the  executive,  are 
subdivided  into  ordinary  laws  and  constitutional  pro- 
visions which  are  elaborated  either  by  special  organs 
or  by  a  special  procedure.  Executive  orders  are  also 
distinguished  according  as  they  are  made  by  the  chief 
executive  or  by  inferior  organs  of  administration,  depart- 
mental or  municipal. 

Since  this  distinction  between  laws  and  executive 
orders  is  a  distinction  resting  purely  upon  form,  in  oppos- 
ing them  to  each  other,  we  are  advancing  a  conception 
resting  purely  on  form.  Legislation  in  the  formal  sense 
is  merely  acts  of  a  legislative  body,  and  this  definition 
can,  in  a  way,  be  opposed  to  the  one  already  given  of 
legislation  as  legal  rules  established  by  an  organ  of  gov- 
ernmental power  whether  under  the  form  of  a  legisla- 
tive act  or  an  executive  order.  The  conception  with 
which  we  are  now  dealing  of  legislation  relates  purely 
to  the  form  it  takes  on.  The  executive  orders,  so  far  as 
they  contain  legal  rules,  can  be  considered  as  legislation 
in  the  only  important  sense  of  the  word. 

The  preparation  of  laws  is  divided  in  constitutional 
states  into  several  parts  clearly  distinct.  For  example, 
in  all  states  where  legislation  is  the  work  of  the  executive 
and  legislature  combined,  there  are  distinguished:  1st, 
the  initiative;  2d,  the  discussion;  3d,  the  sanction;  4th, 
the  promulgation;  5th,  the  publication  of  the  law.  The 
initiative  is  the  power  to  propose  a  law  for  discussion 
before  the  legislature.  It  can  be  organized  in  four  ways: 
1st,  the  government  alone  can  have  it,  as  in  France 
under  the  second  empire;  2d,  parliament  alone,  as  in 
the  United  States  at  the  present  time;  3d,  the  govern- 
ment and  the  legislature,  as  in  most  constitutional  states; 
and  4th,  the  whole  people,  as  in  Switzerland  today. 


POSITIVE  LAW  431 

The  discussion  of  the  law  is  the  chief  function  of 
the  national  representation.  Wherever  there  is  popular 
representation  in  the  legislature,  it  performs  this  func- 
tion. But  the  right  may  have  two  forms  essentially 
different.  It  may  be  simply  a  right  to  accept  or  reject 
the  projected  law  without  right  to  offer  any  amendment 
or  modification.  Such  a  situation  necessarily  supposes 
that  the  initiative  belongs  only  to  the  government. 

In  modern  states  a  broader  right  is  established  which 
consists  not  only  in  accepting  or  rejecting  the  project, 
but  also  in  proposing  amendments  to  it.  If  parliament 
is  composed  of  two  chambers  as  happens  in  most  modern 
states,  each  of  these  two  chambers  has  equally  the  right 
of  discussing  projects  of  law  and  these  projects  of  law 
can  be  sanctioned  by  the  chief  executive  only  after  they 
are  passed  by  the  houses,  or  by  one  of  them. 

The  sanction  or  confirmation  of  projects  of  law  belongs 
always  to  the  chief  executive.  The  right  of  sanctioning 
supposes  the  right  of  rejecting,  that  is,  of  the  veto,  which 
may  be  absolute  or  suspensive.  An  absolute  veto  is  an 
absolute  right  existing  in  some  monarchical  states  of 
stopping  all  projects  of  law  after  they  have  been  adopted 
in  the  legislature.  The  suspensive  veto  only  checks  the 
project  for  the  time  being,  but  if  the  chambers  insist, 
the  project  may  become  a  law  under  certain  conditions 
in  spite  of  the  chief  executive.  This  form  of  veto  is 
found  in  republics  and  in  some  monarchical  states,  Nor- 
way for  example. 

The  law  accepted  by  the  chambers  and  sanctioned  by 
the  chief  executive  may  then  be  executed  by  promul- 
gating, and  is  finally  published  that  everybody  may  have 
knowledge  of  it. 

In  most  constitutional  states,  as  we  have  said,  legis- 
lation in  the  narrow  sense  of  the  word  is  divided  into 
ordinary  laws  and  constitutional  provisions.  These  last 
are  those  which  establish  the  fundamental  principles  of 


432  THEORY  OF  LAW 

the  organization  of  the  government  and  by  consequence 
are  more  complete  than  the  others.  In  some  states  the 
right  to  make  constitutional  provisions  belongs  to  the 
same  institutions  as  the  right  of  passing  ordinary  legis- 
lation. The  provisions  as  to  their  discussion,  however, 
call  for  more  complicated  forms,  designed  to  insure  ma- 
turity of  consideration.  Such  is  the  case  in  Prussia  and 
in  Prance.  In  other  states  the  power  of  establishing 
constitutional  provisions,  which  may  be  called  the  con- 
stituent power,  is  separated  from  the  ordinary  legisla- 
tive power,  and  is  regarded  as  the  special  privilege  of 
the  whole  people  and  not  of  their  representatives.  In 
Switzerland,  for  example,  this  is  the  means  in  use  for 
making  a  constitutional  provision. 

Legislation  is  distinguished,  essentially,  from  the  other 
sources  of  law,  in  that  it  is  not  an  act  of  application  of 
a  rule,  like  custom,  or  judicial  usage,  but  an  act  which 
lays  down  a  rule. 

Therefore  the  action  of  legislation  is  precisely  deter- 
minate not  only  as  to  relations  of  place,  but  also  in  re- 
lations of  time.  Legislation  acts  only  from  the  moment 
when  it  is  promulgated  and  all  projects  of  legislation 
prior  to  that  are  not  law.  It  can  also  be  arranged  to 
have  force  only  during  a  given  time.  In  any  case  the 
action  of  the  law  ceases  when  it  is  abrogated,  or  replaced 
by  a  new  law,  or  by  custom. 

The  moment  when  legislation  has  the  force  of  law  is 
ordinarily  that  of  its  publication.  The  publication  of  a 
law  is  by  means  of  its  insertion  in  a  paper  specially 
designed  for  such  service,  but  the  law  may  not  be  known 
on  the  very  day  when  its  text  is  published  in  the  journal ; 
it  requires  a  certain  time  for  the  journal  to  reach  all  the 
towns  and  villages  of  the  state,  and  become  generally 
known.  So  it  is  reasonable  to  require,  as  is  done  in 
Germany,  that  legislation  be  not  enforced  until  a  certain 
number  of  days  after  the  publication.  If  the  term  is 


POSITIVE   LAW  433 

long  enough,  it  ought  to  be  the  same  for  the  whole  state 
and  all  its  cities.  This  gives  the  advantage  of  having 
the  law  in  force  on  the  same  date  throughout  the  state. 
In  Germany  the  time  fixed  is  fourteen  days  for  the  mother 
country  and  four  months  for  the  colonies. 

The  action  of  legislation  ceases,  either  by  the  expira- 
tion of  its  term,  if  the  law  was  made  for  a  fixed  term, 
or  because  of  a  new  law  abrogating  the  preceding  one. 
The  promulgation  of  a  new  enactment  abrogates  the  old 
one  only  as  to  those  parts  which  were  actually  designed 
to  be  replaced.  The  other  rules,  set  up  by  the  old  law 
and  which  are  not  replaced  by  the  new,  keep  their  full 
force.  They  can  no  longer,  however,  be  considered  as 
constitutional  provisions.  At  least,  this  is  so  in  France. 

Legislation  is  made  up  of  a  succession  of  dispositions, 
one  after  the  other,  at  the  requirement  and  according 
to  the  degree  of  needs.  Such  a  diversity  presents  very 
grave  inconveniences  which  make  the  study  of  legisla- 
tion more  and  more  difficult,  but  these  inconveniences 
are  further  aggravated  by  the  fact  that  special  disposi- 
tions arising  at  quite  different  epochs  are  often  the  ex- 
pression of  totally  opposite  principles,  according  to  the 
epoch  in  which  they  arose  and  according  to  the  interest 
controlling  the  government's  action.  As  a  result  there 
are  grave  contradictions  in  the  several  parts. 

A  systematic  re-enactment  of  legislation,  a  complete 
revision  of  different  laws  in  order  to  form  a  systematic 
whole,  is  an  extremely  practical  and  necessary  thing. 
Such  unification  can  be  obtained  in  two  different  ways, — 
either  by  incorporation  or,  better,  by  codification.1 
Incorporation  is  a  means  of  codifying  law,  but  merely 
for  those  in  force,  without  change  of  form,  so  that  at 
bottom  they  are  not  modified.  It  is  the  unification  of 
the  legislation  in  force.  It  produces,  therefore,  only  an 

»  Zhinuliak.  "As  to  codification  and  its  influence  on  legislation  and  the  science 
of  law."  Legal  Messenger  (Russian),  1876. 


434  THEORY  OF  LAW 

apparent  unification.  It  does  not  remove  the  numerous 
contradictions  which  the  existing  laws  previously  con- 
tained. 

t  Codification  does  not  limit  itself  to  a  mere  change  in 
the  forms  of  law.  It  permits  the  obtaining  of  a  system- 
atic unification  from  the  very  bottom  of  the  law,  and 
for  this  reason  the  codifier  is  not  limited  to  working  upon 
actually  existing  legislation.  He  can  draw  from  custom- 
ary law,  from  judicial  decisions,  from  foreign  law,  or 
from  the  science  of  law.  The  code  is  not  simply  ancient 
legislation  under  a  new  form,  it  is  new  law  in  the  most 
complete  sense  of  the  word. 


CHAPTER  II 

THE  SOURCES  OF  RUSSIAN  LAW 
Section  55.     The  Relations  Between  the  Different  Sources 

GRADOVSKY.     Principles  of  Russian  Constitutional  Law.     I.  p.  11. 
ZITOVICH.     Course  in  Civil  Law.     I. 

TAGANTZEV.  Course  in  Russian  Criminal  Law.  Part  I.  p. 
141. 

The  sources  of  Russian  law,  like  those  of  all  positive 
'aw,  are  legislation,  customs,  and  judicial  usage.  The 
47th  article  of  Fundamental  Laws  says  also,  it  is  true, 
that  the  Russian  Empire  is  governed  by  the  positive 
laws,  the  institutions  and  the  regulations  made  by  auto- 
cratic power,  as  if  this  text  would  exclude  all  other  rules 
than  those  created  by  legislation.  Article  65  of  these 
same  Fundamental  Laws  provides  in  its  terms  that  the 
law  should  be  applied  according  to  its  exact  and  literal 
sense  without  any  possibility  of  admitting  "the  falla- 
cious uncertainty  of  a  voluntary  interpretation."  It 
seems,  then,  that  legal  rules  can  be  created  among  us 
neither  by  customs  nor  by  judicial  usage.  In  reality, 
however,  judicial  usage  and,  above  all,  customs  play 
an  exceedingly  important  part  in  Russia. 

This  absence  of  correspondence  between  the  funda- 
mental laws  and  the  truth  is  explained  in  the  first  place 
by  the  fact  that  the  editors  of  the  code  were  under  the 
influence  of  old  conceptions,  and  they  thought  legisla- 
tion was  the  sole  source  of  law.  Customs  and  judicial 
usage  had  no  importance  in  their  eyes.  Independently 
of  this  first  reason,  at  the  time  when  the  code  was  estab- 
lished the  people  almost  universally  lived  under  customs. 
Serfdom  then  prevailed  and  legislation  up  to  that  time 
had  hardly  touched  upon  private  relationships.  As  to 

435 


436  THEORY  OF  LAW 

the  judicial  power,  it  was  not  then  yet  separated  from 
legislative  power  and  the  highest  judicial  tribunal,  the 
Council  of  State,  was  at  the  same  time  a  legislative  in- 
stitution. For  this  reason  judicial  usage  had  not  then 
been  recognized  as  an  independent  source  of  law.  If 
the  tribunal  found  in  legislation  some  obscure  or  incom- 
plete places,  it  went  for  explanation  to  the  court  one 
degree  higher,  and  thus  in  hierarchical  order  before  the 
Council  of  State,  was  then  disposed  of  according  to  the 
opinion  of  this  council,  on  the  order  of  the  Sovereign,  that 
is  to  say,  legislatively.  These  opinions  of  the  Council  of 
State  as  to  special  litigation  have  played  a  very  impor- 
tant role  in  the  development  of  our  legislation.  A  great 
many  dispositions,  still  today  in  force,  had  no  other 
origin.  There  was  in  such  state  of  things  no  reason 
why  the  editors  of  the  code  should  consider  judicial 
practice  as  an  independent  source  of  law.  Judicial  sen- 
tences at  that  time  constantly  turned  into  legislative 
decretals.  There  was  no  rigorous  delimitation  between 
the  two.  There  is  none  even  up  to  this  day,  and  our 
code  itself  brings  some  attenuation  to  the  principle  for- 
mulated in  Article  47. 

Our  modern  legislation  recognizes  an  extensive  enough 
application  of  juridical  customs  by  the  tribunals.  Legis- 
lation permits,  first  of  all,  to  the  justices  of  the  peace  to 
guide  their  decisions  by  local  customs  known  to  all,  but 
only  in  the  precise  cases  in  which  this  application  is 
authorized  or  in  such  cases  as  the  law  has  no  provision 
for  (C.  pr.  civ.,  Art.  130).  Certain  special  tribunals 
have  equally  the  right  of  employing  customs.  These  are 
district  tribunals,  courts  of  commerce  and  certain  indige- 
nous tribunals. 

The  application  of  customs  by  the  district  tribunals 
has  special  importance,  since  they  are  the  ones  which 
control  almost  all  the  peasants'  civil  affairs;  that  is  to 
say,  those  of  the  largest  part  of  the  Russian  population. 


POSITIVE   LAW  437 

Judicial  reform  in  1864  separated  the  judicial  power 
from  the  legislative  and  at  the  same  stroke  suppressed 
the  prohibition  against  interpreting  the  law.  Today 
the  tribunals  are  required  to  decide  the  actions  sub- 
mitted to  them  according  to  existing  legislation  without 
being  able  to  assert  that  the  law  is  obscure,  incomplete, 
defective  or  contradictory.  The  tribunals  find  them- 
selves, then,  given  the  right  to  interpret  the  laws.  Judi- 
cial matters  can  no  longer  be  carried  before  the  Council 
of  State  to  be  there  resolved  by  legislative  methods. 
The  judicial  power  must  itself  resolve  all  the  questions 
submitted  to  it.  In  fact  our  judicial  usage,  especially 
that  of  the  Court  of  Cassation,  as  a  result  of  the  numer- 
ous imperfections  in  the  texts  of  the  law,  exhibits  very 
often  a  creative  character. 

Legislation,  however,  in  Russia,  as  in  all  other  states 
at  the  present  time,  is  the  chief  source  of  law.  All  the 
legal  rules  established  by  the  organs  of  power  are  so  by 
the  sovereign  power.  The  organs  of  administration  have 
also  in  an  important  degree  the  right  of  creating  legal 
rules  by  their  own  acts  on  the  condition,  well  under- 
stood, of  not  contradicting  the  law.  It  is  thus  that 
such  a  right  is  given  to  governors,  to  municipal  coun- 
cils, and  to  the  provincial  assemblies  of  departments 
as  well  as  to  different  ministers  through  a  special  dele- 
gation. Article  47  of  Fundamental  Laws  must  then  be 
interpreted  in  a  restricted  way.  The  laws  made  by 
supreme  power  are  not,  in  Russia,  the  only  legal  rules 
having  obligatory  force.  Legislation  itself  admits,  to  a 
certain  extent,  that  customary  law,  judicial  practice, 
and  the  lower  organs  of  executive  power  are  also  makers 
of  rules  having  an  obligatory  force  for  the  citizens.  So 
Article  47  must  be  interpreted  with  the  meaning  that 
laws  made  by  the  supreme  power  are  the  higher  form 
of  the  rules  of  positive  law  in  force  in  Russia.  These 
laws  fix  the  conditions  and  the  limits  of  the  obligatory 


438  THEORY  OF  LAW 

force  of  legal  rules.  Customs,  judicial  usage,  the  direc- 
tions of  inferior  functionaries, — all  these  rules  are  sub- 
ject in  their  action  to  the  laws  created  by  the  supreme 
power. 


POSITIVE  LAW  439 


Section  56.     Russian  Legislation 

GRADOVSKY.     Principles  of  Russian  Constitutional  Law.     I. 
KORKUNOV.     Russian  Public  Law.     II.     pp.  28  to  88.     Id.     Ex- 
ecutive Orders  and  Legislation,     pp.  289  to  357. 

The  Russian  Emperor  like  all  autocratic  monarchs 
has  unlimited  power,  and  the  legislative  function  which 
he  performs  is  not  limited  in  any  way  by  any  other 
organ.  His  sole  will  governs  all  legislative  questions. 

A  good  many  writers  have  concluded  that  every  order 
emanating  from  the  Emperor  is  a  law.  Prom  the  fact 
that  his  power  is  unlimited,  obligatory  force  has  been 
attributed  to  all  his  orders.  All  manifestations  of  the 
supreme  will,  say  they,  have  necessarily  equal  force  and 
there  can  be  no  distinction  between  laws  and  execu- 
tive orders  of  the  Emperor  if  the  latter  are  not  in  con- 
tradiction with  some  law.  This  is  Speransky's  opinion, 
and  from  his  time  was  the  dominating  one  in  Russian 
literature. 

The  fundamental  laws,  however,  show  no  such  com- 
plete confusion  between  laws  and  other  acts  put  forth 
by  the  supreme  power.  The  preparation  and  abroga- 
tion of  laws,  as  well  as  their  forms,  are  determined  by 
special  rules  which  are  not  applicable  to  executive  acts. 
As  regards  the  making  of  law,  for  example,  Article  50 
provides  that  all  proposed  laws  shall  be  examined  by  the 
Council  of  State.  As  to  the  form  to  be  given  to  them, 
Article  53  fixes  their  number  and  Articles  54  and  55 
distinguish  between  new  laws  and  those  which  are  only 
complementary  to  those  already  put  forth.  The  new 
laws  must  be  completed  by  the  Emperor's  signature; 
for  the  others,  on  the  contrary,  a  verbal  assent  suffices. 
Finally,  Article  73  prescribes  the  rule  that  laws  must  be 
abrogated  with  the  same  formalities. 


440  THEORY  OF  LAW 

After  having  in  this  way  distinguished  between  laws 
and  other  sovereign  acts,  the  fundamental  laws  provide 
in  Article  77  for  the  possibility  of  contradictions  between 
laws  and  orders,  and  it  is  the  senate  first,  the  supreme 
power  afterwards,  which  is  to  judge  of  them. 

Do  all  these  rules  in  the  fundamental  laws  express, 
then,  only  a  tendency  which  cannot  be  carried  out  prac- 
tically under  the  rule  of  an  absolute  monarchy?  Such 
a  conclusion  cannot  be  admitted.  Whoever  has  un- 
limited power,  can,  if  he  pleases,  give  to  his  different 
acts  different  effects,  and  the  difference  in  the  general 
principles  controlling  special  acts  in  administering  the 
state  make  such  difference  in  effects  of  acts  necessary. 
A  monarch  who  has  unlimited  power,  who  controls  at 
the  same  time  the  general  principles  of  the  state's  ac- 
tivity and  the  special  concrete  customs  relating  to  sepa- 
rate individuals,  even  such  a  soveriegn  cannot  escape  such 
a  necessity,  and  he  must  establish  a  difference  between 
his  acts  which  have  a  directing  influence  and  those  which 
have  only  a  momentary  effect. 

It  is  necessary  to  apply  to  all  these  acts,  legislative 
and  administrative,  rigorously  determinate  forms  in  order 
to  distinguish  them  readily.  No  man  could,  in  dealing 
with  a  multitude  of  individual  cases,  with  the  most 
special  and  various  questions,  apply  to  all  of  these  cases 
the  same  general  principles,  if  those  principles  were  not 
established  under  a  special  form,  under  the  form  of  law. 
If  the  distinction  between  legislative  acts,  strictly  so 
called,  and  administrative  acts,  properly  so  named,  were 
not  drawn,  there  would  be  reason  to  fear  that  both 
would  be  frequently  neglected.  It  is  by  no  means  easy 
to  always  apply  to  the  cases  of  all  men  impartially  the 
same  general  principles  once  for  all  adopted.  Strong 
interests  of  every  kind  struggle  constantly  together  and 
numerous  difficulties  rise  up  at  every  instant.  In  a 
state,  by  reason  of  the  extreme  complexity  of  the  facts, 


POSITIVE  LAW  441 

and  the  diversity  of  human  activity,  this  difficulty  of 
applying  always  the  same  principles  is  still  greater. 
The  absence  of  a  preorganized  system  is  then  still  more 
dangerous  in  the  state's  administration  than  in  indi- 
vidual activity. 

In  an  unlimited  monarchy,  as  in  every  other  govern- 
ment, the  need  of  distinguishing  certain  acts  having  a 
certain  form  and  possessing  absolute  force  as  legislative 
acts  is  none  the  less  strong.  The  distinction  is  still 
possible  though  the  monarch's  power  is  unlimited,  be- 
cause he  can  manifest  that  power  under  different  forms. 
He  has  less  reason  for  departing  from  the  rigorous  ob- 
servance of  these  forms  than  has  the  constitutional 
monarch.  If  his  power  over  legislation  is  limited  by 
that  of  the  national  representatives,  there  is  a  strong 
temptation  on  the  monarch's  part  to  enlarge  more,  and 
more  the  sphere  of  application  of  his  orders  to  which  no 
parliamentary  consent  is  necessary.  The  constitutional 
monarch  is  not  assured  of  the  consent  of  parliament 
for  the  projects  which  he  submits  to  it.  There  are 
measures  which  he  thinks  it  absolutely  necessary  to 
take  which  may  raise  a  lively  opposition  in  parliament. 
It  is  quite  otherwise  with  the  action  of  the  absolute 
monarch.  In  legislation  as  in  administration  his  power 
is  equally  unlimited  and  complete.  Then,  too,  he  has 
no  interest  in  refusing  to  observe  the  forms  of  legisla- 
tive acts  which  he  has  himself  instituted.  In  observ- 
ing them  he  remains  always  free,  as  they  are  his  own 
work.  It  is  only  among  counselors  of  the  monarch, 
who  seek  to  subject  him  wholly  to  their  own  influ- 
ence, that  there  can  arise  an  interest  in  setting  aside 
these  more  complex  forms  of  discussion  of  legisla- 
tive acts,  which  call  for  a  great  number  of  coun- 
selors. 

As  to  the  monarch  himself,  a  rigorous  observation  of 
the  established  forms  of  legislation  would  not  seem  to 


442  THEORY  OF  LAW 

be  troublesome.  His  power  will  be  manifested  so  much 
the  more  freely  as  the  preliminary  discussion  of  his 
projects  is  complete  and  fully  reasoned.  After  having 
heard  the  observations  of  many  counsellors,  he  will  the 
more  easily  raise  himself  above  the  petty  quarrels  or 
interests  among  the  counsellors.  The  personal  inter- 
ests which  surround  the  monarch  certainly  urge  upon 
him  a  certain  confusion  of  matters  of  legislation  with 
those  of  administration;  but  unlimited  power  in  the 
monarch  does  not  of  itself  require  any  such  confu- 
sion. 

We  must,  then,  recognize  that  all  sovereign  acts  are 
not  laws;  but  among  them,  those  only  are  laws  which 
have  been  promulgated  in  accordance  with  Article  50 
of  the  Fundamental  Laws,  that  is  to  say,  after  discus- 
sion .before  the  Council  of  State.  The  Council  of  State, 
however,  performs  a  function  wholly  consultative.  It 
does  not,  itself,  decide  any  question.  It  merely  gives 
its  opinion  as  to  any  matter  submitted  to  the  Sovereign. 
The  opinions  are  unanimous  or  by  a  majority  of  votes, 
but  whichever  way  it  is,  the  result  is  not  binding  on 
the  Emperor.  The  Emperor  after  hearing,  or  as  the 
manifesto  of  Alexander  I  says,  "after  having  taken 
into  consideration  the  opinion  of  the  Council  of  State," 
takes  a  resolution  according  to  the  majority  or  mi- 
nority opinion,  or  one  according  to  his  own  personal 
ideas. 

Notwithstanding  Gradovsky's  great  authority,  we  may 
not  compare  the  distinction  which  has  been  taken  be- 
tween verbal  and  written  acts  to  that  between  laws 
and  executive  orders.  On  the  one  hand  the  laws,  even 
those  made  with  the  concurrence  of  the  Council  of  State, 
do  not  always  have  the  Emperor's  signature.  Quite  fre- 
quently the  sanction  is  in  the  Emperor's  handwriting, 
but  with  the  signature  only  the  words,  "Let  it  be  so"; 
and  sometimes  there  is  only  an  oral  assent. 


POSITIVE  LAW  443 

Article  54  of  the  Fundamental  Laws  which  prescribe 
that  every  new  law  must  receive  the  Emperor's  signa- 
ture, has  its  corollary  in  the  following  Article  55,  which 
provides  that  complementary  laws  need  not  have  such 
signature.  With  the  development  of  modern  legislation 
there  are  few  laws  which  cannot  be  considered  as  com- 
plementary to  some  existing  one. 

The  Emperor's  signature  under  Article  66  may  be 
appended  to  acts  of  sovereign  power  which  have  no 
legislative  character;  for  example,  to  acts  conferring 
titles  and  appointments  to  higher  offices.  The  Emperor's 
signature  proves  in  such  cases  not  that  the  act  has  been 
discussed  in  the  most  profound  manner,  but  merely  that 
it  has  the  character  of  highest  authenticity.  This  signa- 
ture belongs,  then,  to  quite  different  acts,  some  of  which 
are  by  no  means  legislative. 

Gradovsky's  opinion  is  based  chiefly  upon  a  wrong 
printing  of  the  text  of  Article  77  in  the  edition  of  1857. 
The  true  text  of  this  article,  that  of  the  editions  of  1832 
and  1842,  spoke  of  the  law  for  removing  contradictions 
contained  in  sovereign  orders,  whatever  form  those  or- 
ders may  have  had;  as  a  result  of  a  mistake  in  the  text 
of  1857,  there  was  no  question  of  errors  except  those 
in  laws  which  had  the  Emperor's  signature. 

So  far  as  concerns  the  elaboration  of  legislation  in 
Russia,  as  a  result  of  the  absence  of  all  national  repre- 
sentation, the  right  of  initiative  belongs  solely  to  the 
government,  and  first  to  the  Emperor,  then  to  the  senate 
and  to  the  synod,  which  can  bring  before  the  Council  of 
State  the  discussion  of  legislative  questions;  but  the 
privilege  of  legislative  initiative  does  not  belong  to  the 
ministers.  They  have  to  get  the  Emperor's  authority 
for  the  bringing  before  the  Council  of  State  of  any  pro- 
jected legislation.  The  Council  of  State  itself  does  not 
have  the  right  of  initiative.  It  can  discuss  projects  for 
legislation  only  when  laid  before  it. 


444  THEORY  OP  LAW 

The  discussion  of  projects  of  legislation  takes  place  at 
first  in  one  of  the  sections  of  the  Council,  a  sort  of  com- 
mission of  preparation,  then  in  a  general  gathering 
which  includes,  besides  those  specially  designated  by 
the  Emperor,  all  the  ministers.  The  conclusion  reached 
by  the  Council  is  submitted  to  the  Emperor  under  the 
form  of  very  brief  reports,  which  are  called  Journal  of 
the  Session,  or  Memoirs.  The  conclusion  of  the  Em- 
peror is  then  expressed,  according  to  the  importance  of 
the  question,  either  in  writing  or  merely  orally  in  vari- 
ous forms,  according  to  whether  it  is  the  majority  or 
the  minority  opinion  of  the  Council,  which  the  Sovereign 
adopts.  If  the  Emperor  confirms  the  majority  opinion, 
he  indicates  it  merely  by  the  words,  "Let  it  be  so," 
or  by  a  statement  of  the  decision  reached  by  the  Em- 
peror, signed  by  the  president  of  the  Council.  In  the 
opposite  case  the  sovereign  will  is  expressed  either 
by  an  act  signed  by  the  Emperor  or  by  an  oral 
order  of  the  Emperor  declared  to  the  Council  by  its 
president. 

The  external  forms  of  law  are  very  diverse.  They 
may  be  distinguished  into  complete  and  abridged  forms 
of  legislative  acts.  The  complete  form  has  three  parts: 
first,  the  text  of  the  law;  second,  the  opinion  of  the 
Council  of  State;  third,  the  order  for  its  publication  and 
putting  in  force.  The  text  of  the  law  carries  different 
names:  regulation,  decree,  edict,  ordinance.  These  dif- 
ferent names  do  not  correspond  to  any  clear  distinction 
of  fact.  The  order  which  the  Emperor  makes  for  the 
publication  of  the  law  and  the  putting  of  it  into  effect 
is  contained  in  a  decree  which  he  signs  and  sends  to  the 
senate.  In  the  case  of  law  which  is  specially  important, 
the  Emperor,  in  addition  to  the  formalities  which  we 
have  just  stated,  makes  a  proclamation  to  his  subjects 
in  which  he  explains  the  motives  which  led  him  to  take 
such  action. 


POSITIVE  LAW  445 

This  complete  form  is  rarely  applied.  The  manifestoes 
of  the  Sovereign  directly  to  the  people  are  few.  Very 
often,  even,  the  decree  sent  to  the  senate  is  suppressed. 
In  this  case  the  legislative  act  contains  only  two  parts: 
first,  the  opinion  of  the  Council  of  State;  second,  the 
text  itself  of  the  law.  If  the  law  is  of  little  importance, 
its  text  is  included  in  the  opinion  of  the  Council  of  State. 
It  happens,  too,  that  some  laws  consist  only  in  orders, 
signed  by  the  Emperor,  and  addressed  to  the  senate. 
The  order  contains,  then,  the  text  itself  of  the  law  and 
a  direction  to  the  senate  to  publish  and  put  it  in  force. 
The  publication  of  law  is  brought  about  by  means  of 
the  senate,  which  sends  the  new  laws,  with  notices,  to 
all  the  institutions  required  to  apply  them.  It  also 
causes  them  to  appear  in  the  Collection  of  Laws  and 
Ordinances  of  Government,  so  that  all  may  have  knowl- 
edge. Government  institutions,  functionaries,  and  the 
general  public,  can  thus  learn  of  new  laws. 

The  rules  with  regard  to  the  putting  in  force  of  laws 
are,  with  us,  still  very  vague  and  unsatisfactory.  Dating 
from  the  XVIII  century,  they  call  for  knowledge  of 
new  laws  only  on  the  part  of  governmental  institutions, 
and  not  of  the  whole  population.  Articles  57  and  58 
of  the  Fundamental  Laws  seem  to  prescribe  a  rule  ac- 
cording to  which  laws  must  be  published  twice.  Article 
57  provides  that  this  duty  be  entrusted  to  the  senate, 
and  Article  58  assigns  to  the  provincial  administra- 
tion the  task  of  publishing  the  law  in  each  department, 
but  since  the  whole  Empire  is  divided  into  depart- 
ments it  will  be  asked  what  is  the  senate's  role  in  the 
publication.  Article  59  says  that  the  different  admin- 
istrations can  apply  the  law  before  it  has  become  obliga- 
tory upon  individuals.  Each  tribunal,  consequently, 
including  the  senate  and  the  departmental  administra- 
tion, should  apply  new  laws  from  the  moment  of  their 
reception.  They  can  only  be  published  after  they  have 


446  THEORY  OP  LAW 

been  received,  and  the  day  of  reception  cannot  be  the 
same  as  that  of  publication.  Meanwhile,  the  law  has 
obligatory  force  both  for  individuals  and  the  tribunals 
which  are  charged  with  ascertaining  rights  and  obliga- 
tions. 

The  absurd  consequences  of  a  literal  interpretation  of 
the  text  of  the  Fundamental  Laws  is  explained  only  by 
the  fact  that  these  texts  are  not  designed  to  speak  of 
the  application  of  laws  except  so  far  as  such  application 
shall  be  made  by  the  different  administrations.  But 
how  ought  law  to  be  promulgated  in  order  to  come  to 
the  knowledge  of  all? 

It  is  in  a  very  general  way  that  Article  59  tells  us  that 
law  has  no  executory  force  except  so  far  as  it  is  pub- 
lished. But  it  does  not  say  what  is  meant  by  the  ex- 
pression, "The  day  of  publication."  The  general  regu- 
lations of  the  senate,  it  is  true,  in  its  Article  19,  says 
that  this  day  is  determined  by  the  senate's  order.  The 
publication  of  the  law  in  the  Collection  of  Laws  is 
equivalent  to  an  official  one,  and  it  might  properly 
seem  that  this  publication  fixes  the  moment  from  which 
the  law  should  begin  to  be  obligatory  upon  individuals. 
This  interpretation  leads  us,  however,  to  some  conse- 
quences which  cannot  be  admitted.  If  we  should  accept 
it,  it  would  be  necessary  also  to  recognize  the  law  as 
obligatory  for  individuals  before  it  is  for  tribunals,  since 
it  is  through  the  Collection  of  Laws  that  the  tribunals 
learn  of  new  ones.  It  must,  then,  be  admitted  as  a 
general  fact  in  practice,  and  in  legal  literature,  that  the 
law  becomes  obligatory  at  the  same  time  both  for  indi- 
viduals and  for  tribunals,  and  in  becoming  so,  it  becomes 
obligatory  before  reaching  the  knowledge  of  the  people 
generally.  This  inconvenience  also  must  be  added, 
that  for  each  tribunal  the  starting  point  from  which 
the  law  becomes  obligatory  is  different.  With  the  great 
distances  which  separate  certain  cities  from  the  capitol 


POSITIVE   LAW  447 

this  is  an  important  point,  and  the  difference  between 
the  dates  of  application  of  the  law  in  different  places  is 
sometimes  very  wide. 

We  cannot,  then,  simply  by  recognizing  the  moment 
of  publication  of  the  law  in  the  Collection  determine 
the  time  at  which  it  becomes  obligatory.  For  this  it  is 
necessary  to  know  at  what  time  each  local  tribunal 
receives  it. 


448  THEORY  OF  LAW 

Section  57.     The  General  Code  of  Laws 
HISTORIC  DEVELOPMENTS  OF  THE  CODE  OF  1837 

Besides   the   Collection   of   Laws   and    Ordinances   of 
Government  published  every  year  since  1863,  we  have 
in  addition  two  other  collections  of  laws, — the  Chrono- 
logical   Collection,    complete    with    all    legislative    acts 
since  the  code  of  Czar  Alexis,  and  the  Systematic  Col- 
lection of  present  legislation,  more  simply  styled  Code 
of   Laws.      These   are   all    collections   of   laws   already 
promulgated,   of  original  laws,   but  they  present  very 
important  differences  between  each  other.     In  the  first 
place  they  are  not  final  collections,  like,  for  example,  the 
Code  of  Justinian.     They  are,  on  the  contrary,  collec- 
tions of  legislation  actually  in  force  and  always  suscep- 
tible of  revisions  and  changes.     The  Complete  Collec- 
tion does  not,  like  the  Code,  present  a  tableau  of  our 
legislation  at  a  given  moment  of  its  historic  evolution. 
On  the  contrary,  it  is  designed  to  show  us  all  the  succes- 
sive changes  in  that  legislation.     Then  these  collections 
are  not  prepared  by  the  legislative  power,  but  by  an 
institution  having  no  such  power.    At  the  beginning, 
this  institution  was  the  second  section  of  the  Emperor's 
chancellery.     It  was  transformed  in  1882  into  a  section 
charged  with   codification   of  laws,    and   since   1893   it 
has  become  a  special  section  of  the  chancellery  of  the 
state,  a  section  of  the  Code  of  Laws.     Gotten  up  by 
this  institution,  the  new  volumes  of  the  Complete  Col- 
lection,  the  same  as  new   editions  or  supplements   of 
the  old  Code,  are  not  subjected  to  the  action  of  the 
Council  of  State,  as  is  required  in  the  promulgation  of 
fresh  laws. 

Under  the  reign  of  Nicholas  I  were  put  out  for  the 
first    time    this    Complete    Collection    and    the    Code. 


POSITIVE   LAW  449 

What  is  appearing  today  is  merely  the  succession  of 
these  different  publications.  Therefore,  the  last  edition 
of  the  Code,  that  of  1893,  bears  still  the  same  title, 
Code  of  Laws  of  the  Russian  Empire  prepared  by  Order 
of  the  Emperor,  Nicholas  I. 

Several  times  it  has  been  attempted  to  publish  other 
codes,  that  of  Alexis  in  1648,  and  under  Peter  I  at  the 
beginning  of  the  XVII  century,  as  well  as  at  the  com- 
mencement of  the  XIX.  All  these  attempts  failed,  and 
Nicholas  I  decided  to  compose,  instead  of  a  new  code,  a 
collection  made  up  of  laws  then  in  force.  He  entrusted 
this  work  to  Speransky. 

Such  an  enterprise  offered  a  good  many  difficulties. 
The  laws  were,  up  to  that  time,  published  on  separate 
sheets;  there  was  no  collection  at  all  complete,  either 
official  or  private.  So,  to  determine  upon  and  classify 
the  laws  then  in  force  it  was  necessary  first  to  collect 
all  since  1649  and  classify  them  simply  in  chronological 
order.  This  was  done  in  1830,  when  appeared  the  first 
complete  collection  of  laws,  a  collection  of  forty-five 
volumes,  which  includes  all  the  legislative  acts  put 
forth  from  1649  to  December  12,  1825,  that  is  to  say, 
up  to  the  day  of  the  first  manifesto  of  Nicholas  I,  a 
total  of  30,220  acts. 

All  these  acts  were  inserted  in  the  Collection  just  as 
they  had  been  promulgated,  without  any  changes  and  in 
the  chronological  order.  The  day  of  publication  of 
the  law  was  sometimes  indicated,  but  not  always.  This 
Collection,  in  order  to  facilitate  researches,  includes 
besides,  two  indexes,  a  chronological  and  an  alpha- 
betical one,  and  a  systematic  table  of  contents.  At  the 
same  time  with  the  appearance  of  this  first  "Complete 
Collection"  there  began  the  publication  of  a  second  col- 
lection which  was  to  include  all  legislative  acts  newly 
promulgated  and  to  begin  with  the  first  manifesto  of 
Nicholas  I.  This  second  collection  is  composed  on  the 


450  THEORY  OF  LAW 

same  plan  as  the  first,  but  numbered  in  a  different 
order. 

With  the  coming  to  the  throne  of  Alexander  II  there 
arose  a  question  whether  this  second  collection  should 
not  be  terminated  and  a  third  commenced  with  the 
first  manifesto  cf  that  Emperor;  but  Alexander  II 
refused  to  undertake  the  publication  of  a  new  collec- 
tion. It  was  only  on  the  twenty-fifth  anniversary  of  his 
reign  that  a  third  collection  was  commenced,  February 
19,  1880.  After  the  accession  of  Alexander  III,  October 
19,  1883,  the  second  collection  was  continued  up  to  that 
date  so  as  to  embrace  all  the  acts  of  the  preceding  reign, 
and  it  was  from  this  date  only  that  the  third  collection 
commenced  with  the  first  manifesto  of  Alexander  III. 
The  second  collection  at  the  present  time  terminated 
includes,  then,  all  the  legislative  acts  of  two  reigns,  that 
of  Nicholas  I  and  of  Alexander  II,  a  total  of  fifty-five 
volumes. 

The  publication  of  the  Complete  Collection  was  brought 
about  by  the  dispersion  of  the  laws,  which  were  all  pub- 
lished on  separate  sheets.  Since  1863  the  publication  of 
new  laws  has  taken  place  through  the  Collection  of  Legis- 
lative Acts,  which  is  also  a  complete  collection  provided 
with  a  chronological  and  alphabetical  index.  The  in- 
quiry is  made  if  there  is  any  necessity  for  continuing 
the  Complete  Collection  when  there  is  another  Chrono- 
logical Collection  which  always  appears  long  in  advance 
of  the  Complete  Collection.  This  question  has  been  sev- 
eral times  raised,  notably  in  1882,  by  the  Council  of 
State.  The  publication  of  the  Complete  Collection  has 
nevertheless  been  maintained. 

The  reasons  for  keeping  up  the  publication  of  these 
two  collections  are  interesting  from  several  points  of 
view.  It  has  been  explained  before  that  it  is  only  in 
the  Complete  Collection  that  the  laws  are  placed  in  a 
definite  chronological  order.  In  the  Collection,  on  the 


POSITIVE   LAW  451 

contrary,  the  order  is  merely  that  of  chance.  The  laws 
in  this  collection  are  inserted,  not  according  to  the  date 
on  which  they  are  sanctioned,  but  according  to  the  date 
on  which  the  senate  has  discussed  them.  But  it  is  nec- 
essary to  say  that  the  chronological  order  according  to 
the  time  of  their  publication  which  has  been  selected 
by  the  Complete  Collection  is  not  very  important. 

For  a  jurist  the  important  thing  is  to  know  at  what 
time  a  law  became  obligatory,  not  when  it  was  sanc- 
tioned. This  last  date  can  interest  only  the  historian. 
Then  it  is  observed  that  there  are  numerous  defects  in 
the  Collection  inevitable  in  such  hasty  publication.  To 
be  sure,  there  are  defects,  also,  in  the  Complete  Collec- 
tion, for  such  there  are  in  all  human  works,  but  they 
are  not  in  great  number.  These  defects  should  be  cor- 
rected as  promptly  as  possible  by  the  same  institution 
which  has  created  the  law.  It  must  be  added  to  these 
considerations  that  the  Complete  Collection  and  the 
Collection  do  not  coincide  in  all  their  parts.  The  Com- 
plete Collection  contains  a  much  greater  number  of 
acts.  Volume  41,  for  example,  of  the  Complete  Col- 
lection has  1242  orders,  while  the  corresponding  volume 
of  the  other  collection  comprises  only  893.  This  is  ex- 
plained because  the  second  section  of  the  chancellery 
charged  with  the  publication  of  the  second  collection 
followed  the  same  rules  as  those  which  had  served  for 
the  first.  They  were  not  satisfied  with  reprinting  the 
published  orders  to  which  the  senate  had  refused  publi- 
cation because  they  had  not  been  rendered  according  to 
the  forms  required  by  general  law.  The  section  of  codi- 
fication recognized  how  badly  ordered  was  such  a  pub- 
lication, and  since  then,  by  order  of  the  Emperor,  the 
Complete  Collection  includes  only  acts  published  in 
the  Collection.  We  may  therefore  question  the  impor- 
tance of  continuing  these  two  collections  which  have  be- 
come identical. 


452  THEORY  OP  LAW 

The  existence  of  these  two  official  collections  may  give 
rise  in  practice  to  serious  inconveniences.  Two  inde- 
pendent collections,  prepared  by  different  institutions, 
can  never  be  completely  identical.  There  will  be  differ- 
ences between  them,  and  besides,  the  director  of  the 
Complete  Collection  asserts  the  right  of  correcting  faults 
in  the  text  of  the  other  collection.  It  can  happen,  then, 
in  this  way  that  the  same  law  will  present  a  different 
text  in  the  one  collection  from  that  of  the  other.  Which 
of  the  two  texts,  then,  would  have  obligatory  force? 
Since  the  insertion  of  the  law  in  the  Collection  is  an 
essential  element  in  its  publication,  it  must  be  admitted 
that  the  law  is  as  it  has  been  put  forth  in  the  Collec- 
tion and  this  has  obligatory  force,  and  that  in  case  of 
conflict  with  the  text  of  the  Complete  Collection  it  is 
the  text  of  the  Collection  that  ought  to  prevail. 


POSITIVE  LAW  453 


Section  58.     The  First  Editions  of  the  Code 

The  publication  of  the  Complete  Collection  was  con- 
sidered as  a  necessary  preparation  for  the  publication 
of  The  Collection  of  Laws  Actually  in  Force,  that  is, 
the  Code.  This  Code  is  distinguished  from  the  Col- 
lection first  of  all  by  its  contents.  It  does  not  con- 
tain all  the  laws,  but  only  those  which  still  have  oblig- 
atory force.  Then,  the  laws  in  force  are  not  inserted 
in  the  Code  in  their  entirety  and  under  the  form  in 
which  they  were  promulgated  at  the  beginning.  The 
Code  includes  only  extracts  under  the  form  of  distinct 
articles  with  references  to  the  orders  which  served  for 
their  revision.  Finally,  the  order  of  the  legislative  dis- 
positions contained  in  the  Code  is  not  chronological  but 
systematic. 

The  Code  was  composed  in  seven  years.  Commenced 
in  January,  1826,  it  contained  at  the  end  of  1832  the 
laws  in  force  up  to  January  1st  of  that  year  and  on 
January  19,  1833,  it  was  presented  to  the  Council  of 
State  at  a  memorable  sitting  over  which  Nicholas  I 
presided.  The  manifesto  was  signed  January  31,  1833, 
but  this  first  edition  was  called  from  the  year  of  its 
publication,  the  edition  of  1832.  The  date  of  its  going 
into  effect  was  January  1,  1835,  in  order  to  permit  the 
tribunals  to  fully  understand  it. 

At  the  publication  of  the  Code  it  was  first  of  all  neces- 
sary to  exclude  all  laws  which  had  been  abrogated  by 
later  ones.  All  repetitions  were  also  set  aside  and  in- 
stead of  several  laws  as  to  the  same  matter,  the  Code 
never  contains  more  than  one.  Finally,  the  very  text 
of  the  ancient  laws  is  preserved  as  far  as  possible  "be- 
cause in  law  it  is  not  elegance  of  style  which  must  be 
considered,  but  its  force,  and  its  force  is  so  much  the 


454  THEORY  OF  LAW 

greater  the  older  it  is."  Finally,  diffused  laws,  too 
much  extended,  were  abridged  and  for  this  purpose  it 
was  decided  to  recall  for  what  object  the  law  had  been 
established  without  setting  forth  too  extensively  the 
particular  cases. 

Made  up  in  this  way,  the  laws  form  different  articles 
of  the  Code,  and  for  each  of  them  dispositions  have  been 
found  which  have  served  as  a  basis.  The  object  of  giv- 
ing to  these  articles  a  greater  certainty  was  not  the  only 
one,  but  also  to  make  the  reading  of  the  Code  more 
comprehensible.  There  are  here  some  indications  neces- 
sary in  order  to  determine  precisely  the  field  of  the  law 
and  to  understand  its  true  meaning  in  case  of  doubt. 
They  are  the  best  means  for  gaining  a  good  interpreta- 
tion. They  form  a  system  based,  not  upon  arbitrary 
conclusion,  but  upon  the  comparison  between  the  two 
forms  which  are  given  to  the  same  law. 

Besides  the  references  to  the  orders  which  have  served 
as  their  basis,  some  articles  of  the  Code  include  in  addi- 
tion notes  and  supplements.  The  first  edition  contained 
under  the  form  of  notes,  some  explanations,  which,  con- 
taining neither  command  nor  prohibition,  were  not  laws. 
The  supplements  contain  different  forms  and  tables  which 
would  have  obscured  the  meaning  of  the  leading  articles 
and  would  have  broken  their  connection  if  placed  in  the 
text  itself.  In  later  editions  the  same  rule  was,  unfor- 
tunately, not  observed,  and  under  the  form  of  notes 
and  supplements,  true  laws  have  been  inserted  modifying 
entirely  the  articles  to  which  they  are  added.  It  is  ob- 
served, moreover,  in  these  last  times,  there  is  a  tendency 
to  give  to  notes  and  supplements  the  same  effect  which 
they  had  formerly. 

The  articles  of  the  Code  are  arranged  in  a  systematic 
order.1  This  system  rested  upon  the  following  princi- 
ples' All  laws  are  divided  into  constitutional  and  civil. 

1  The  edition  of  1832  contained  36,000,— with  supplements,  42,198. 


POSITIVE   LAW  455 

The  constitutional  laws  are  those  which  determine  the 
rights  and  duties  of  the  individual  towards  the  state. 
They  are  of  two  kinds.  The  one  kind  fix  the  very 
essence  of  the  organization  of  the  state;  the  others 
merely  protect  the  rights  which  result  from  it.  The 
laws  of  the  first  group  are  subdivided  in  their  turn, — 
first,  into  fundamental  laws  which  regulate  the  sovereign 
power,  its  organization  and  its  action  as  to  both  legis- 
lation and  administration;  second,  into  organic  laws  which 
regulate  the  organs  of  power;  third,  into  governmental 
laws,  which  determine  the  means  by  the  aid  of  which 
power  acts  and  which  arrange  the  forces  of  which  power 
disposes  (personal  duties,  military  service,  taxes);  and, 
finally,  fourth,  those  laws  of  the  classes,  laws  which  fix 
the  rights  and  duties  of  subjects  according  to  their 
degree  of  participation  in  the  state's  power. 

The  public  laws  of  the  second  group  are  divided  into 
preservative  laws  and  criminal  laws. 

Civil  laws  fix  the  rights  and  duties  arising  from  the 
family  and  from  the  possession  of  property.  Speransky, 
however,  has  divided  them  into  two  categories  by  another 
mark  of  distinction.  He  has  combined  together  the 
laws  of  the  family  and  patrimonial  ones  under  the  name 
of  general  civil  law,  and  he  distinguishes  from  them  the 
special  civil  laws,  that  is  to  say,  those  which  fix  the 
rights  over  goods  in  their  relation  to  the  state  and  to 
commerce,  industry,  etc.  These  special  civil  laws  are 
called,  according  to  their  main  purpose,  the  economic 
laws  of  the  state.  The  whole  Code  is  thus  divided  into 
eight  leading  sections  comprised  in  fifteen  volumes: 

I.  The   Fundamental    Laws   of   the   State,    Vol.    1, 
Parti. 

II.  Institutions:     a,  central,  Vol.   1,  p.  2;  6,  local, 
Vol.  2;  c,  rules  as  to  functionaries,  Vol.  3. 

III.  The    Laws   Organizing    the    State's   Forces:    a, 
regulation    of   requirements,    Vol.    4;    6,    regulation    of 


456  THEORY  OF  LAW 

imposts  and  rights  of  the  state,  Vol.  5;  c,  regulations  of 
import  duties,  Vol.  6;  d,  regulation  of  money,  mines  and 
salt,  Vol.  7;  e,  regulation  of  forests  and  domainal  re- 
ceipts, Vol.  8. 

IV.  Laws  with  Reference  to  the  Classes,  Vol.  9. 

V.  Civil  Laws  and  Concerning  Boundaries,  Vol.  10. 

VI.  Laws  as  to  Good  Order  in  the  State:  a,  credit, 
commerce  and  industry,  Vol.  11;  b,  ways  for  communi- 
cation,   constructions,    fires,    rural    economy,    police    of 
village  and  colonies,  police  of  foreigners  in  the  Empire, 
Vol.  12. 

VII.  Laws  of  Police:  a,  public  assistance  and  medical 
laws,  Vol.  13;  b,  passports,  criminal  arrests,  Vol.  14. 

VIII.  Criminal  Laws,  Vol.  15. 

Each  of  the  fifteen  volumes  in  the  Code  constituted  a 
separate  whole,  a  distinct  code,  devoted  to  a  special 
institution,  having  its  own  numbered  order  and  separate 
pagination.  This  system  includes  all  the  law  in  force 
with  the  exception,  first,  of  local  law;  second,  legislative 
acts  as  to  public  instruction  and  the  control  of  the  state; 
third,  legislative  acts  as  to  the  control  of  religious  worship; 
fourth,  some  laws  concerning  the  administration  of  the 
court  and  certain  benevolent  institutions  placed  under 
the  special  auspices  of  the  Emperor  or  of  members  of  the 
imperial  family;  fifth,  some  laws  as  to  the  army  and  navy. 
It  forms  a  code  of  laws  in  the  material,  not  the  formal 
sense  of  the  word.  It  includes  all  the  legal  rules  created 
by  the  sovereign  power  and  also  those  which  emanate 
from  inferior  administrative  organs,  especially  from  the 
ministers  and  from  the  senate.  In  including  in  the 
Code  the  orders  of  the  senate  or  of  the  ministers  it  was 
not  intended,  however,  to  give  them  for  the  future  the 
force  of  law.  In  the  Review  of  Instructions  as  to  the 
Code,  p.  176,  it  is  said,  on  the  contrary,  that  all  these 
orders  have  been  carefully  distinguished  by  a  reference  to 
the  order  itself,  in  order  not  to  confuse  them  with  the  law. 


POSITIVE   LAW  457 

According  to  the  opinion  of  the  Council  of  State  of 
December,  1834,  an  opinion  confirmed  by  the  Emperor, 
it  was  understood  that  the  Code  would  comprehend, 
first,  the  circulars  of  the  ministers  bearing  upon  the 
execution  of  the  law,  if  these  circulars  were  confirmed  by 
the  senate;  second,  the  explanations  furnished  by  the  ad- 
ministration ratified  and  published  by  the  senate,  on  condi- 
tion that  they  conform  to  the  laws  in  force  and  that 
they  do  away  with  the  doubts  which  might  arise  from 
reading  the  text,  without,  however,  giving  to  that  text 
any  modification. 


458  THEORY  OP  LAW 


Section  59.     Later  Editions  of  the  Code  and  Supplements 

Since  our  Code  is  a  collection  of  laws  actually  in  force 
and  is  intended  to  reflect  all  the  changes  brought  forward 
in  legislation  it  was  necessary  to  take  measures  that  it 
be  always  in  conformity  with  the  actual  state  of  legis- 
lation. To  reach  this  end  two  different  means  are 
employed, — first,  new  editions  of  the  Code  are  published; 
second,  supplements  are  added  from  time  to  time. 
After  the  first  edition  of  1832  there  were  two  others 
in  1842  and  in  1857  and  then  a  great  number  of  editions 
of  separate  volumes  and  distinct  parts  in  1883,  1885, 
1886,  1887,  1889,  1890,  1892  and  1893. 1  All  these  edi- 
tions, however,  do  not  fully  replace  that  of  1857,  certain 
parts  of  which  are  still  in  full  force. 

At  the  beginning  it  was  hoped  that  new  editions  could 
be  made  upon  the  precise  plan  of  the  old  one,  maintain- 
ing its  least  details.  With  this  object,  the  Council  of 
State  put  out  on  December  15,  1834,  the  opinion  that 
the  preparation  of  a  new  statute  ought  always  to  con- 
form as  far  as  possible  to  the  leading  arrangements  in 
the  corresponding  article  of  the  Code.  It  was  thought 
then  that  whatever  changes  were  subsequently  brought 
into  legislation,  they  could  always  find  place  in  the  Code. 
In  the  meanwhile,  however,  when  this  question  was 
discussed  in  the  Council  of  State,  Count  Kankrine 
expressed  some  doubts  as  to  the  possibility  of  always 
placing  under  the  Code's  rubrics  the  new  laws,  which 
introduce  notable  changes,  and  to  which,  in  consequence, 
there  would  be  no  corresponding  chapters  already  exist- 
ing. This  was  what,  in  fact,  happened  at  the  editing  of 
the  new  Code  of  1842. 

1  No  mention  has  been  made  of  the  reprints  of  1833  and  of  1835,  though  both 
these  reprints  were  entitled  in  printing  them,  as  new  editions. 


POSITIVE   LAW  459 

After  the  first  edition  of  the  Code  a  good  many  impor- 
tant institutions  were  created.  There  were  some  very 
useful  instructions  on  this  subject  addressed  to  the 
governors.  There  were  some  laws  as  to  the  matter  of  a 
regency  in  the  government,  as  to  police  of  districts,  etc. 
As  it  was  impossible  to  place  them  in  the  midst  of  exist- 
ing articles,  they  were  put  at  the  end  as  supplements  to 
the  articles  which  they  superseded.  Their  position  has 
no  relation  to  the  importance  of  the  new  laws.  The 
original  plan  put  in  the  supplements  only  some  articles 
bearing  upon  modifications  of  detail;  instead  of  this 
there  are  now  some  orders  fixing  the  entire  local  admin- 
istrations which  find  place  there. 

In  the  second  edition  of  the  Code  in  1842  it  was 
thought  to  set  aside  so  troublesome  a  disposition,  and 
that  it  could  be  done  without  essentially  modifying  the 
arrangement  of  the  different  volumes.  It  is  in  this  way, 
for  example,  as  Count  Bludov  explained  in  his  report 
to  the  Emperor  of  December  10,  1842,  that  Vol.  II  was 
made  over  and  entirely  composed  anew  in  this  second 
edition.  One  might  almost  say  that  every  part  in  this 
volume  has  recived  modifications  as  a  result  of  new 
laws.  The  same  thing  happened  in  other  volumes,  but 
in  less  degree. 

Besides  this,  there  is  an  important  innovation  in  all 
the  volumes,  one  which  appeared  at  first  to  have  no 
purely  external  results,  but  which  has,  however,  abso- 
lutely changed  the  general  character  of  the  Code.  In 
the  first  edition  each  volume  was  one  of  a  series  with  a 
general  numbering.  The  Code  was  then  a  systematic 
collection  of  articles  forming  fifteen  volumes.  For  the 
indication  of  an  article  two  numbers  were  required,  its 
volume  and  the  article.  The  place  of  an  article  was 
determined  solely  by  its  place  in  the  Code  and  not  at 
all  by  the  chapter  in  which  it  first  appeared.  There 
was  thus  obtained  a  complete  unity  between  the  differ- 


460  THEORY  OF   LAW 

ent  parts  of  the  Code.  In  the  edition  of  1842,  on  the 
contrary,  the  different  institutions  and  the  different 
articles  have  all  received  a  separate  numbering.  Count 
Bludov  gave  a  reason  for  it,  basing  it  upon  considera- 
tions of  an  external,  practical  sort.  It  was  necessary, 
he  said,  to  make  the  sale  of  different  parts  of  each 
volume  possible.  In  fact,  this  change  had  consequences 
which  were  important  in  another  way.  In  rendering 
easier  the  preparation  of  the  new  edition  it  permitted 
^the  new  laws  also  to  find  a  place  in  it,  while  still  keep- 
ing its  original  system  for  the  Code  as  a  whole.  This 
happened,  for  example,  in  the  articles  regulating  the 
Council  of  State,  and  the  one  as  to  instructions  addressed 
to  the  governors. 

The  second  edition  is  larger  than  the  first,  the  number 
of  articles  is  greater  by  more  than  twice  that  of  the  edi- 
tion of  1832;  it  is  59,396  articles.  On  the  first  of  Novem- 
ber, 1851,  the  Emperor  directed  the  preparing  of  a  third 
edition.  The  Count  Bludov,  who  had  always  charge 
of  these  codification  projects,  hoped,  according  to  his 
report  of  November  1,  1851,  to  introduce  some  very 
important  changes  into  this  new  edition.  He  wished 
to  put  in  all  the  laws  which  had  not  appeared  in  the 
first  two  editions  excepting  always  the  military  and 
naval  codes,  the  laws  as  to  the  Emperor's  domain  lands, 
as  to  the  government  of  the  Baltic,  and  as  to  the  ortho- 
dox religion.  The  number  of  volumes  would  be  raised 
in  this  way  from  fifteen  to  twenty.  In  his  report  of 
December  16,  1854,  he  decided  to  keep  the  same  number 
of  volumes  and  to  do  this  he  divided  Vols.  2,  8,  11,  12, 
and  15  into  two  parts  each,  and  Vol.  10  into  three,  and 
so  the  third  edition  has  fifteen  volumes  in  twenty-two 
parts.  The  whole  Code  is  divided  into  eight  principal 
parts  and  since  certain  volumes  are  divided  into  parts 
that  word  has  to  be  understood  in  two  meanings.  Count 
Bludov's  idea  of  putting  into  this  new  edition  all  the 


POSITIVE   LAW  461 

then  in  force  was  not  fully  carried  out.  There 
were  introduced  only  the  statute  as  to  finances,  Vol.  8, 
Part  2,  those  relating  to  foreign  religions,  Vol.  12,  Part  1, 
and  those  as  to  the  post  and  telegraph,  Vol.  2,  Part  2. 
The  third  edition  comprises  about  ninety  thousand 
articles. 

The  edition  of  1857  was  the  last  of  the  whole  Code. 
Up  to  1876  there  was  no  new  edition.  A  new  edition 
was  then  made  up  of  the  first  parts  of  Vols.  2,  3  and  8, 
the  second  parts  of  Vols.  10,  11  and  15,  and  since  that 
time  there  have  been  various  editions  of  separate 
volumes. 

All  these  new  editions  compromise  badly  the  original 
unity.  Beside  volumes  of  the  edition  of  1857,  still  in 
force  today,  must  be  put  editions  of  1892  and  1893, 
which  were  composed  after -the  appearance  of  the  very 
important  reforms  of  the  XIX  century.  Our  Code  has 
never  had  an  internal  unity.  It  has  not  lost  its  external 
unity,  and  has  ceased  to  be  the  work  of  a  single  hand, 
or  even  that  of  a  single  epoch.  It  now  no  longer  presents 
a  tableau  of  the  legislation  of  any  given  historical  period. 

The  different  statutes  become  from  day  to  day  more 
diverse  and  more  independent.  We  have  already  seen 
that  in  the  edition  of  1842  the  different  Codes  contained 
in  the  same  volume  had  received  a  distinct  numbering. 
In  the  most  recent  editions,  each  volume  formed  a  dis- 
tinct collection  of  codes,  regulations  and  institutions 
without  having  any  connection  with  a  preconceived 
general  plan,  and  without  being  attached  to  any  given 
system.  Each  new  legislative  act,  however  unimpor- 
tant, forms  a  new  integral  part  of  the  volume  coming 
the  nearest  in  matter  to  that  of  which  it  treats.  The 
numerous  changes  which  have  taken  place  in  our  legis- 
lation in  these  last  sixty  years  have  completely  altered 
the  original  system  of  the  Code.  The  number  of 
volumes,  even,  is  no  longer  the  same. 


462  THEORY   OF  LAW 

The  Code  gave  no  distinct  place  to  the  judiciary  and 
the  administration  of  justice.  The  tribunals  formed  the 
subject  of  a  chapter  among  those  treating  of  the  other 
state  establishments.  They  were  subdivided  into  Cen- 
tral Tribunals,  in  Vol.  1,  and  Local  Tribunals,  in  Vol.  2. 
The  laws  for  the  administration  of  criminal  justice  and 
of  civil  justice  have  been  joined  to  criminal  and  civil 
law.  In  the  regulations  of  justice  by  Alexander  II,  the 
judiciary  and  the  administration  of  justice  were  com- 
pletely modified,  and  became  a  separate  whole.  For 
this  reason  after  the  attempt  of  Prince  Urusov  to  place 
the  regulations  as  to  the  administration  of  justice  in 
distinct  parts  of  different  volumes  of  the  edition  of  1876, 
it  was  decided  in  1892  to  make  out  of  these  a  new 
volume,  Vol.  16.  The  number  of  parts  in  certain 
volumes  was  changed.  Vol.  10  had  no  longer  three 
parts,  but  only  two,  the  civil  laws  and  laws  as  to  bound- 
aries, and  Vols.  2  and  15  were  reduced  to  one  part  each. 

With  regard  to  what  the  Code  should  include,  it  was 
decided  in  1885  to  put  in  only  legislative  acts,  and  ordi- 
nances of  the  Emperor  addressed  to  his  subjects,  which 
were  connected  with  texts  of  the  Code,  and  as  to  which 
there  were  no  existing  legislative  texts.  It  was  decided, 
also,  to  put  in  explanatory  orders  which  had  been  sanc- 
tioned by  the  Emperor.  Orders  of  the  senate  were  to 
have  no  place,  unless  presenting  something  specially 
important  for  the  explanation  of  a  law,  and  on  condi- 
tion that  each  such  order  should  be  authorized  by 
the  Emperor  to  be  inserted  in  the  Code.  The  ministers' 
circulars  were  not  to  be  inserted  except  those  of  the 
Finance  Minister  in  regard  to  import  duties.  In  our 
time  the  Code  is  made  up,  therefore,  of  sixteen  volumes, 
Vols.  1,  8,  10,  11,  12,  and  16  having  two  parts,  and  Vol.  9 
containing  a  distinct  supplement  with  regulations  as  to 
the  peasants.  These  volumes  include  the  following 
matter: 


POSITIVE   LAW  463 

Vol.  1,  Part  1:  Fundamental  laws  of  the  state.  Part  2: 
Statutes  of  the  Council  of  State,  of  the  Council  of  Min- 
isters, of  the  Council  of  Siberian  Railroads,  of  the  senate, 
of  ministers,  orders  as  to  petitions  addressed  to  the 
Emperor,  as  to  recompenses  decreed  by  the  Emperor, 
as  to  different  titles  of  nobility  (editions  of  1892,  1893 
and  1895). 

Vol.  2:  The  general  organization  of  the  provinces, 
laws  as  to  provincial  institutions  and  districts,  cities, 
Poland,  the  Caucasus,  Trans-Caspian  territories,  Tur- 
kestan, as  to  the  province  of  Akmolinsk,  of  Semipala- 
tinsk,  of  Semiretchinsk,  of  Uralsk,  of  Turgaisk,  of 
Siberia,  and  laws  relating  to  foreigners  (editions  of  1892, 
1893  and  1895). 

Vol.  3:  Provisions  with  regard  to  nomination  of  func- 
tionaries, subventions  and  pensions  (editions  of  1876, 
1890,  1891,  1893),  regulations  as  to  civil  service  in  dis- 
tant localities,  in  western  governments  and  Poland  (edi- 
tions of  1890,  1891,  1893),  as  to  funds  of  the  civil  depart- 
ment (editions  of  1886,  1890,  1891,  1894). 

Vol.  4:  Provisions  as  to  military  service  (edition  of 
1886,  1890,  1891,  1893),  those  relating  to  land  taxes 
(editions  of  1857,  1890,  1891  and  1893),  and  to  provin- 
cial institutions  (editions  of  1890,  1891,  1893). 

Vol.  5 :  Provisions  as  to  direct  taxes,  as  to  the  rights  of 
the  state,  receipts,  lodgings,  taxes  (editions  of  1893,  1895). 

Vol.  6:  Provisions  as  to  imports,  the  general  tariff  on 
imports  in  European  commerce  (editions  of  1892,  1893, 
1895). 

Vol.  7:  Provisions  as  to  money  and  mines  (editions  of 
1893  and  1895). 

Vol.  8:  Provisions  as  to  forests,  payments  due  the 
state,  administration  of  state  domains  in  western  and 
Baltic  governments  (edition  of  1893,  part  2),  provisions 
as  to  accountability  (editions  of  1857,  1890,  1891,  1893, 
and  1895) 


464  THEORY  OF  LAW 

Vol.  9:  Provisions  as  to  ranks,  special  supplement  to 
Vol.  9  (editions  of  1876,  1890,  1891,  and  1893). 

Vol.  10,  Part  1:  Code  of  civil  laws,  regulations  as  to 
markets  and  matters  furnished  for  the  account  of  the 
state  (editions  of  1887,  1890,  1891,  1893,  and  1895). 
Part  2:  Provisions  as  to  boundaries  (editions  of  1893 
and  1895). 

Vol.  11,  Part  1:  Provisions  as  to  foreign  religions 
(editions  of  1857,  1890,  1891,  and  1893),  as  to  educa- 
tional establishments  under  control  of  Minister  of  Pub- 
lic Instruction  (editions  of  1893  and  1895).  Part  2: 
Provisions  as  to  credit,  bills  of  exchange,  commerce, 
consuls,  industry  (editions  of  1893  and  1895). 

Vol.  12,  Part  1 :  Provisions  as  to  the  administration  of 
roads  (editions  of  1857,  and  1893),  as  to  railroads  (edi- 
tions of  1886  and  1893),  as  to  posts  and  telegraph 
(editions  of  1876  and  1893),  constructions  (editions  of 
1887  and  1893),  regulation  of  fire  insurance  (editions 
of  1886  and  1893).  Part  2:  Laws  as  to  rural  economy, 
field  labor,  taverns  and  hotels  (editions  of  1893  and 
1895),  police  of  villages  (editions  of  1857,  1890,  and  1891), 
Cossack  villages  and  foreign  colonies  in  the  Empire 
(editions  of  1857,  1863,  1864,  and  1868). 

Vol.  13:  Provisions  as  to  public  food  supply  and  public 
assistance  (editions  of  1892,  1893,  and  1895). 

Vol.  14:  Provisions  regulating  passports,  the  censor- 
ship, the  press,  persons  detained  and  deported  (editions 
of  1890,  1891,  1893,  and  1895). 

Vol.  15:  Criminal  and  correctionary  laws,  the  rules  as 
to  punishments  by  justices  of  the  peace  (editions  of 
1885,  1890,  1891,  1893,  and  1895). 

Vol.  16,  Part  1:  Judiciary  regulations.  Part  2:  Organi- 
zation of  local  tribunals,  laws  as  to  the  administration 
of  justice  and  civil  penalties  (editions  of  1892,  1893,  and 
1895). 

As  the  successive  editions  of  the  Code  are  separated 


POSITIVE   LAW  465 

from  one  another  by  a  considerable  interval,  there  have 
been  enacted  every  year  supplements,  which,  without 
citing  the  whole  contents  of  the  Code,  contained  only 
the  changes  brought  about.1 

These  supplements  are  of  two  different  kinds;  one 
includes  only  the  laws  adopted  since  the  publications 
of  the  preceding  supplement,  the  others  include  all  which 
have  appeared  since  the  last  edition  of  the  Code.  The 
supplements  actually  in  force  are  those  of  1890,  1891, 
1893,  1895,  and  it  is  only  for  laws  in  regard  to  the 
Cossacks  and  colonies  of  foreigners  (Vol.  12,  Part  2) 
that  the  supplements  of  the  editions  of  1863,  1864,  and 
1868  preserve  their  force. 

The  laws  inserted  in  the  Code,  or  in  the  supplements, 
should  be  cited  by  notes  indicating  references  to  corre- 
sponding parts  of  the  Code.  That  is  the  way  the  senate 
regulation  has  provided.  These  references  should  in- 
clude, first,  the  date  of  the  edition  or  of  the  supplement; 
second,  an  indication  of  the  volume,  or  the  part  of  the 
Code  if  the  volume  has  more  than  one  part;  third,  the 
title  of  the  law  and  the  abbreviation  commonly  used  to 
designate  it;  fourth,  the  numbers  of  the  article;  as  one 
should  say,— Code  of  1892,  Vol.  11,  Statute  as  to  Cities, 
Art.  1.  As  we  have  already  indicated,  certain  branches 
of  our  legislation  are  not  included  in  the  Code.  They 
may  be  found  only  in  the  supplements  to  later  editions. 
This  is  the  case  with  the  laws  as  to  scientific  establish- 
ments and  foreign  religions.  There  are  some  laws  which 
have  not  gotten  into  the  Code  at  all,  but  form  distinct 
codes.  Such  are  those  relative  to  the  region  of  the 
Baltic  and  the  military  and  naval  codes. 

The  military  code  appeared  in  1838.  It  consists  of 
five  parts,  is  divided  into  twelve  volumes  in  fifteen 

i  The  Code  of  1832  included  six  supplements  of  this  kind,  those  of  1834,  1835, 
1836,  1837,  1838,  and  1839.  The  first  included  823  corrections.  The  Code  of 
1842  had  nineteen  supplements,  and  the  Code  of  1857  also  nineteen. 


466  THEORY   OF  LAW 

books.  The  first  part,  Vols.  1  to  4,  contained  the  organiza- 
tion of  military  institutions;  the  second,  Vols.  5  and  6,  the 
laws  as  to  the  service;  the  third,  Vol.  7,  as  to  instruction 
of  troops;  the  fourth,  Vols.  8  to  11,  the  laws  as  to  the 
amendments;  the  fifth,  Vol.  12,  as  to  military  crimes. 

On  the  same  plan  was  the  second  edition  in  1859, 
which  had  six  supplements  up  to  January  1,  1869.  The 
military  reforms  of  the  last  reign,  however,  were  so 
important  that  his  plan  became  impracticable.  So  in 
1869  came  a  third  edition  on  a  new  plan.  It  consists 
of  six  parts, — first,  military  administration;  second, 
regular  troops;  third,  irregular  troops;  fourth,  military 
establishments;  fifth,  military  economy;  sixth,  military 
discipline  and  justice.  The  new  edition,  however,  is 
not  yet  complete.  Only  parts  one,  four  and  six  have 
fully  appeared,  the  second  and  fifth  in  parts  only,  and 
the  third  not  at  all.  There  are  three  supplements, 
issued  in  1874,  1879,  and  1881. 

The  code  of  marine  laws  of  1886  includes  eighteen 
books:  1st,  administrative  rules  of  the  naval  ministry; 
2d,  equipage  and  detachments;  3d,  establishments  of 
instruction;  4th,  medical  establishments;  5th,  technical 
establishments;  6th,  hydrographic  establishments;  7th, 
prisons;  8th,  matters  of  service;  9th,  pay  and  aids  in 
money;  10th,  maritime  laws;  llth,  police  of  ports;  12th, 
instructions  on  economy;  13th,  pay  of  functionaries; 
14th,  equipage  of  ships;  15th,  regulations  of  finance; 
16th,  punishments  on  ships  of  war;  17th,  discipline  in 
general;  18th,  justice. 

There  are  special  laws  for  the  governments  of  the 
Baltic  Region, — first,  organization  of  local  institutions; 
second,  rights  of  classes;  third,  civil  laws.  The  code  of 
laws  of  the  government  of  the  Baltic  contains  only  these 
three  parts.  The  two  first  appeared  in  1845,  with  a 
supplement  in  1853.  The  code  of  civil  laws  was  pub- 
lished only  in  1864. 


POSITIVE  LAW  467 

In  the  government  of  the  ex-kingdom  of  Poland,  the 
French  civil  code,  introduced  in  1808,  prevails  down  to 
the  present  time.  There  have  been,  however,  important 
changes,  notably  as  to  marriage.  The  official  Russian 
translation  of  this  code  appeared  in  1870  under  the 
title,  Collection  of  Civil  Laws  of  the  Governments  of 
the  Kingdom  of  Poland. 

Finally,  in  Finland,  there  is  still  a  special  legislation 
in  force,  which  has  grown  up  through  the  activity  of  a 
special  legislative  organ,  the  Finland  Diet.  The  basis 
of  this  legislation  is  the  Swedish  Code  of  1734,  published 
in  Russia  with  changes  and  supplements  in  1824,  under 
the  title  of  Swedish  Code  Accepted  by  the  Diet  of  1734 
and  Sanctioned  by  the  Emperor  for  the  Grand  Duchy  of 
Finland.  The  new  laws  were  printed  in  the  collection 
of  decretals  of  the  Grand  Duchy  of  Finland  which 
appeared  in  Swedish  in  1808  and  was  printed  in  Russian 
in  1860. 


468  THEORY  OF  LAW 


Section  60.     The  Importance  and  Force  of  the  Code 

From  the  appearance  of  the  Code  it  was  the  intention 
to  condense  into  one  systematic  whole  the  body  of  laws 
then  in  force,  but  there  was  no  intention  of  replacing 
the  former  legislation  by  new.  It  may  be  asked,  then, 
what  the  legal  compass  of  the  Code  was  designed  to  be. 
Ought  it  to  be  regarded  as  a  new  law  abrogating  all 
former  ones,  or  only  as  a  new  form  given  to  the  old 
laws  and  merely  intended  to  make  their  comprehension 
and  application  easier?  If  the  Code  is  recognized  as  new 
law  the  legislation  in  force  before  will  keep  its  force  only 
in  so  far  as  it  shall  have  found  a  place  in  the  Code  itself. 
And  if  there  is  any  contradiction  between  the  Code  and 
former  decisions,  the  articles  of  the  Code  will  control  it, 
since  the  Code  in  its  quality  of  new  law  will  abrogate 
previous  contradictory  laws.  If  it  is  considered  merely 
as  a  reproduction  of  the  old  laws  which  keep  their 
force,  then  it  must  be  admitted  that  the  articles  of  the 
Code  are  obligatory  only  so  far  as  they  correctly  repro- 
duce that  law  on  which  they  are  founded. 

To  recognize  the  Code  as  new  law  abrogating  all 
anterior  on&s  was,  in  practice,  the  most  convenient  way. 
The  question  of  the  relations  of  the  Code  to  anterior 
laws  would  thus  be  solved  in  a  very  simple  way.  Only 
the  Code  had  the  force  of  law.  On  the  other  hand,  to 
resolve  it  in  this  way  was  to  depart  from  the  very  pur- 
pose of  making  the  Code,  which  was  to  combine  all  the 
legislation  in  force  without  bringing  in  any  change. 
Like  all  human  work,  it  had  certainly  made  changes. 
To  count  it  new  law,  abrogating  what  went  before,  was 
to  ratify  and  establish  all  the  changes  and  omissions 
unconsciously  made  by  its  redactors. 

The  determination  of  the  legal  effect  of  the  Code  is, 


POSITIVE  LAW  469 

then,  a  practical  question  of  great  difficulty.  How  has 
it  been  determined  in  our  legislation? 

The  manifesto  of  January  31,  1833,  which  announced 
the  first  edition  of  the  Code,  in  its  second  and  fourth 
articles  determines  this  question.  The  second  article 
indicates  the  legal  force  of  the  Code  in  requiring  its 
citation  and  application  in  governmental  and  judicial 
matters.  In  all  cases  where  laws  are  applied  and  cited, 
at  large  or  by  extracts,  a  reference  and  citation  to  the 
Code,  where  it  treats  of  the  matter,  must  be  added. 
The  fourth  article  says  that  the  Code  is  not  designed 
to  change  the  law  but  merely  to  combine  it  under  one 
form  and  order,  when  the  law  reproduced  by  the  Code 
shall  not  be  sufficiently  clear  it  shall  be  explained  as  it 
has  been  hitherto. 

These  directions  are  not  very  explicit.  On  the  one 
side,  it  is  recommended  to  always  refer  to  the  Code  only, 
without  looking  at  the  laws  themselves,  and  it  seems 
that  the  Code  abrogates  all  previous  decisions;  but,  on 
the  other  hand,  it  is  claimed  that  the  anterior  law  is 
unchanged  and  only  uniformity  is  sought.  What  con- 
clusion is  to  be  drawn  from  this  as  to  the  weight  of  the 
Code? 

Zitovich,1  and  after  him  Tagantzev,  affirms  that  the 
Code  has  the  effect  of  new  law  and  abrogates  anterior 
laws.  He  even  adds:  "The  fourth  paragraph  of  the 
manifesto  is  not  entirely  exact,"  and  he  relies,  to  show 
it,  upon  the  report  of  Count  Karl  and  upon  the  opinion 
of  the  Council  of  State  as  to  the  weight  to  be  given  to 
the  Code.  The  demonstration  leads  him  to  some  con- 
clusions precisely  opposite  to  what  takes  place  in  judicial 
practice.  According  to  him  each  article  of  the  Code 
is  a  new  law,  which  has  been  in  force  since  January  1, 
1835,  and  has  such  force,  even  if  the  article  is  not  drawn 

i  Course  of  Russian  Private  Law,  Vol.  I.    Sources  of  Law.    Odessa.  1878.    pp. 
8  to  11. 


470  THEORY  OF  LAW 

from  any  previous  law  or  decision,  or  even  if  it  was  put 
in  by  error  or  misunderstanding  as  an  extract  from  a 
decision. 

But  it  was  decided  to  apply  the  articles  of  the  Code 
of  1832  not  only  for  affairs  which  have  arisen  since  Janu- 
ary 1,  1835,  but  also  to  prior  ones,  when  the  only  law 
was  the  decisions  and  rules  which  are  the  basis  of  the 
Code's  articles.  So,  now,  the  supplementary  articles  are 
applied  to  matters  which  arose  before  their  publication, 
provided  they  sprang  up  after  the  laws  which  served  as  a 
basis  for  the  new  articles  of  the  Code.  This  practice  is 
directly  supported  by  the  fourth  section  of  the  manifesto 
of  January  31,  1833.  So,  too,  our  judicial  usage  never 
recognizes  as  law  evident  errors  in  the  redaction  of  the 
Code.  Law  not  correctly  reported  in  the  Code  is  not 
regarded  as  changed,  and  omitted  laws  are  not  treated 
as  abrogated. 

It  is  true  that  the  manifesto  of  January  31,  1833, 
does  not  expressly  indicate  that  it  is  not  necessary  to 
conclude  that  a  law  changed  in  the  Code,  or  omitted 
from  it,  is  changed  or  abrogated,  but  the  opinion  of  the 
Council  of  State  affirmed  this  and  the  Emperor  sanc- 
tioned it  January  30,  1836.  This  opinion  declares  that 
every  time  the  minister  of  justice  shall  learn  that  during 
the  consideration  of  an  affair  some  difficulty  has  been 
raised  because  the  law  has  not  foreseen  the  case,  or  has 
done  so  incompletely,  the  minister  can  take  the  matter 
in  hand  and  charge  Section  11  with  furnishing  a  resolu- 
tion of  it  to  be  placed  at  the  end  of  the  Code.  In  case 
of  disagreement  between  the  minister's  opinion  and  the 
section,  the  Council  of  State  decides.  This  rule  was  not 
published,  for  it  was  found  to  completely  settle  the  rela- 
tions of  the  minister  and  Section  II. 

The  Code,  therefore,  cannot  be  considered  as  new 
law,  but  only  a  new  form  given  to  pre-existing  law,  a 
form  that  permits  the  ascertainment  of  the  sense  of  the 


POSITIVE  LAW  471 

original   text  and  which  has  been  sanctioned  by  the 

legislative   power. 

Certainly  the  possibility  of  citing  inexactly  the  laws 
which  have  served  as  a  basis  to  the  articles  of  the  Code, 
and  the  necessity  in  consequence  of  always  comparing  the 
articles  of  the  Code  with  the  original  text  of  laws,  pre- 
sents serious  practical  inconveniences.  But  they  can 
be  avoided  by  inserting  in  the  Code  the  literal  words  of 
the  original  law  and  merely  reprinting  them.  This  is 
the  means  used,  as  we  have  seen,  in  recent  years. 


CHAPTER  III 

THE  APPLICATION  OF  POSITIVE  LAW 
Section  61.     Criticism 

UNGER.     System.     I.     Sec.  12,  s.  73. 
SAVIGNY.     System.     I.     Sec.  38,  39. 

PUCHTA.     Pandekten  Vorlesungen.     Aufl.,  1863,  I.     Sec.  12,  13 
(customs),  15  (legislation). 
REGELSBERGER.     Pandekten.     I.     ss.  134-140. 

The  study  and  application  of  the  rules  of  positive  law 
supposes  first  of  all  the  criticism  of  sources,1  that  is  to 
say,  the  determination  in  advance  of  what  is  to  be 
understood  as  the  genuine  rule  of  the  positive  law.  Such 
a  rule  cannot  be  set  apart  nor  understood  without 
knowing  in  what  it  consists.  The  word  criticism  is 
supplied  by  historical  science,  but  presents,  when  applied 
to  jurisprudence,  some  peculiarities.  Criticism,  critique, 
understood  as  the  determination  of  the  genuineness  of 
the  rule  or  of  its  existence,  is  properly  applied  to  all 
the  sources  without  distinction. 

The  existence  of  rules  of  customary  law  is  ascertained 
by  direct  observation  of  the  customs,  by  legal  maxims, 
by  the  testimony  of  learned  persons,  by  published  collec- 
tions of  customs,  and  finally,  by  decisions  based  on 
customary  law.2  The  first  two,  direct  observation  and 
maxims,  give  direct  knowledge  of  customary  law.  The 
whole  matter  is  reduced  to  distinguishing  between  legal 
customs  and  mere  habitual  usage.  The  last  three, — testi- 
mony of  the  learned,  collections,  decisions, — on  the  con- 


1  Ordinarily  in  speaking  of  a  criticism  of  laws,  only  law  in  the  sense  of  legisla- 
tion is  spoken  of,  but  there  is  no  foundation  for  such  a  limitation. 

J  Puchta,   Gewohnheitsrecht,    ss.    12-150,   Salza,    Gewohnheitsrecht,    Weissek's 
Rechtslexikon. 

472 


POSITIVE   LAW  473 

trary,  furnish  only  second-hand  knowledge.  When  these 
means  of  knowledge  are  employed,  therefore,  inde- 
pendently of  the  distinction  between  habits  and  cus- 
toms, it  must  be  asked  how  reliable  is  their  testimony, 
and  it  must  be  ascertained  to  what  extent  the  jurist, 
the  editor  of  the  collection,  or  the  judge,  had  the  ability 
or  the  will  to  formulate  into  an  accurate  rule  the  cus- 
tomary law.  Judicial  decisions  are  a  more  sure  source 
of  knowledge  of  the  customary  law,  because  they  are 
ordinarily  the  result  of  a  minute  verification  of  the 
custom  by  the  judge,  usually  a  person  well  equipped  for 
the  task.  The  same  qualifications  must  be  allowed  in  a 
degree  to  those  tribunals  in  which  the  judges  are  not 
jurists,  but  representatives  of  the  people's  sagacity. 
Such  a  popular  tribunal  is,  to  be  sure,  less  apt  to  find 
an  exact  and  clear  formula  for  a  legal  rule  than  is  a 
tribunal  composed  of  jurists,  but  from  the  persons  who 
make  it  up,  the  popular  tribunal  has  an  immediate 
knowledge  of  customs. 

Less  confidence  is  to  be  put  in  the  conclusions  of 
tribunals  whose  personnel  consists  of  men  equally 
strangers  to  the  popular  conception  of  law  and  to  legal 
instruction.  Such  are,  for  example,  the  clerks  of  local 
courts,  who  can  scarcely  read  and  write,  but  have, 
however,  great  influence  over  the  judicial  usage  in  the 
communal  tribunals. 

The  popularity  of  a  collection  of  customs  is  the  best 
proof  of  its  authority  as  to  those  customs.  If  the  collec- 
tion enjoys  an  authority  recognized  by  every  one,  confi- 
dence may  be  put  in  its  assertions. 

The  testimony  of  competent  persons  may  be  given 
under  three  different  forms.  It  may  consist  in  the  first 
place  of  testimony  by  individuals  chosen  by  the  tribunal 
or  by  the  parties.  There  can  be,  also,  testimony  from 
the  populace  by  means  of  general  interrogatories.  This 
is  a  method  of  ascertaining  the  existence  of  customary 


474  THEORY  OF  LAW 

law  which  was  in  force  in  France  up  to  1667,  when  such 
inquiries  were  stopped.  Finally,  the  testimony  can  also 
be  that  of  some  institution,  as  for  example,  commercial 
deputations,  or  committees  from  the  Board  of  Trade.1 
Formerly  in  France  the  notary's  certificate,  especially 
as  to  commercial  customs,  had  great  favor. 

In  conformity  to  the  edict  of  1700  the  opinion  of 
merchants  confirmed  by  the  Chamber  of  Commerce  had 
the  effect  of  so-called  acts  of  notoriety.2  Like  custom, 
legislation  and  judicial  usage  can  be  known  to  us  in 
two  ways,  at  first  or  second  hand.  Its  immediate  force 
is  derived  from  the  authentic  text  of  the  law  or  from 
judicial  decisions.  Both  are  considered  as  authentic 
texts,  that  is  to  say,  both  the  copy  which  carries  the 
signature  of  the  chief  executive  or  that  of  the  judges, 
and  also  the  official  editions  of  the  laws  and  of  judicial 
opinions.  To  be  sure,  the  original  has  a  greater  author- 
ity than  the  official  edition,  because  there  may  creep  into 
the  latter  some  defect  in  the  printing,  but  defects  are 
possible,  too,  in  the  original.  They  may  result  from 
carelessness  in  copying  or  in  printing,  for  nowadays  the 
original  is  usually  printed.  Defects  in  copying  or  print- 
ing which  are  noticed  in  the  original  are  sometimes 
corrected  in  the  official  edition.  So,  the  difference  be- 
tween the  original  and  the  official  edition  is  trifling. 

The  opinion  that  there  can  be  no  criticism  of  official 
editions3  is  widespread,  but,  as  Puchta  has  shown, 
entirely  erroneous.  If  no  criticism  applies  to  official  edi- 
tions, it  would  result  that  each  page  of  printed  paper, 
if  it  came  from  the  government  printing  office,  would 
pass  for  a  law.  A  critical  examination  even  of  the  text 
of  the  originals  is  necessary.  It  may  happen,  too,  that 


1  Zitovich,  Commercial  Law,  p.  91. 
*  Merlin,  Repertoire,  voce  parere. 

'See,    for    example,   Unger,    System.     I,    s.    73.    Bohlau,    Meklenburgisches- 
Landdrecht.    I,  1871.    s.  320.    Malichev,  Course  in  Private  Law.    I.    p.  291. 


POSITIVE   LAW  475 

the  governmental  order  goes  beyond  the  limits  of  the 
governmental  authority  in  that  respect  and  has  disposed 
of  some  matter  which  ought  to  be  regulated  only  by 
legislation,  that  is  to  say,  in  constitutional  states,  by 
parliament.  In  this  case  the  ruling  is  illegal  and  has 
not  the  force  of  a  law  for  any  tribunal.  It  may  happen, 
too,  that  the  law  contradicts  some  provision  of  the 
constitution,  in  which  case  it  has  no  effect. 

But  criticism  can  be  employed  upon  the  official  edi- 
tions not  merely  in  countries  where  constitutional 
powers  are  separated,  but  in  all  countries,  because, 
whatever  be  the  government  organization,  there  are 
everywhere  definite  forms  for  the  publication  of  laws. 
Criticism  is  applied  to  determine  whether  these  forms 
have  been  properly  observed.  Just  as  it  can  be  applied 
to  official  editions  of  laws,  so  it  can  to  reports  of  decisions. 
A  judgment  that  has  already  been  enforced  and  would 
regularly  be  placed  in  an  official  edition  can  be  sup- 
pressed if,  after  an  examination,  a  personal  object  and 
interest  on  the  part  of  the  judges  has  been  shown. 
Evidently  such  a  judgment  cannot  be  considered  as  an 
expression  of  principles  accepted  in  judicial  usage. 
When  there  is  no  official  edition,  the  criticism  of  sources 
uses  the  same  general  process  as  historical  criticism  does, 
the  jurist  employing  absolutely  the  same  principles. 

Where  the  jurist  has  to  do  with  manuscripts,  besides 
this  general  criticism,  he  is  led  to  use  another  sort  of 
inferior  criticism  which  has  been  styled  diplomatic 
criticism.  Its  object  is  to  ascertain  the  text,  to  correct 
the  defects  left  by  the  copyist  or  printer,  to  complete  it, 
add  signs  of  punctuation,  etc.  These  operations,  as 
relates  to  old  manuscripts,  require  much  labor  and 
ability.  Such  a  manuscript  presents  ordinarily  an  unin- 
terrupted series  of  letters  with  no  separation  between 
them.  To  group  these  letters  into  words,  and  separate 
them  by  signs  of  punctuation  into  propositions,  is 


476  THEORY   OF   LAW 

criticism's  first  task.  The  texts  which  present  numerous 
differences  with  each  other  are  successively  corrected. 
There  are  distinctions  between  the  processes  employed 
in  this  task,  and  this  criticism  is  divided  into  compara- 
tive, resting  upon  the  comparison  of  different  texts  and 
editions,  and  into  conjectural  criticism,  the  following  out 
of  suppositions  independent  of  the  text  (emendationes  ex 
ingenio). 


POSITIVE  LAW  477 


Section  62.     The  Correlation  of  Laws  of  Different  Places 
and  Times 

SAVIGNY.     System.     B.  VIII. 

BAR.     Lehrbuch  des  Intern.  Privat  und  Strafrecht.     1892. 

SCHMID.  Die  Herrschaft  der  Gesetze  nach  ihren  raumlichen  und 
zeitlichen  Grenzen.  1863. 

GRADOVSKY.  The  Effectiveness  of  Law  in  Respect  to  Time 
(Journal  of  Criminal  and  Civil  Law).  1873,  No.  4  (Russian). 

KORKUNOV.  Essay  as  to  Construction  of  International  Criminal 
Law.  Id.  1889,  No.  1. 

If  the  same  rules  of  positive  law  were  always  and 
everywhere  in  effect,  criticism  alone  would  suffice  for 
their  practical  application,  but  in  fact  positive  law  is 
variable  with  time,  and  differs  according  to  states.  For 
this  reason  it  is  necessary  to  have  definite  rules  for  its 
application  to  avoid  conflict  between  different  laws. 
Such  conflicts  are  possible  only  between  laws  of  different 
epochs,  places  or  states. 

Law,  of  course,  can  be  applied  only  to  the  facts  which 
bring  about  its  action.  There  can  be  no  talk  of  the 
application  of  a  foreign  law  with  regard  to  a  transaction 
which  took  place  in  Russia,  for  example,  and  is  brought 
before  Russian  tribunals;  or  again,  of  the  application 
of  the  penal  laws  in  force  before  the  regulation  of  1845 
to  a  fact  which  arose  and  is  passed  upon  under  the  new 
penal  code  of  that  date.  There  would  be  no  reason  for 
such  an  application.  Whether  a  fact  has  arisen  within 
the  sphere  of  a  certain  law's  operation  or  not,  has  always 
to  be  determined. 

But  it  may  happen  that  the  same  fact  falls  under  the 
action  of  two  different  laws,  the  one  with  regard  to  the 
place  and  time  of  its  happening,  the  other  to  the  time 
and  place  of  the  judgment.  This  would  happen,  for 
example,  if  a  criminal  has  committed  his  crime  abroad 


478  THEORY  OF  LAW 

but  is  tried  in  Russia.  There  are  two  possible  prin- 
ciples for  settling  such  difficulties.  Supremacy  can  be 
given  to  the  law  in  the  sphere  of  application  where 
trial  is  had,  or,  equally,  to  the  law  of  the  sphere  of 
application  in  which  the  facts  arose,  and  we  are  liable 
to  get  two  absolutely  different  results  according  to 
which  is  used. 

There  are  arguments  in  favor  of  each  of  these  two 
methods.  In  favor  of  the  application  of  the  law  of  the 
tribunal  in  which  the  given  fact  is  heard,  this  general 
consideration  may  be  first  of  all  advanced, — that  of  know- 
ing definitely  that  the  tribunals  are  guided  by  laws 
which  are  in  force  at  a  given  place  and  during  a  given 
time.  An  organ  of  local  power,  and  performing  its 
functions  as  a  result  of  such  power,  the  tribunal  cannot 
support  itself  upon  foreign  laws,  for  foreign  legislation 
may  sometimes  present  a  complete  denial  of  the  prin- 
ciples upon  which  local  legislation  rests.  In  replacing 
old  laws  by  new  ones  the  governmental  authority  recog- 
nized that  the  old  ones  were  unjust  and  useless;  other- 
wise, it  would  not  have  changed  them.  So  the  tribunal, 
organ  of  this  power,  cannot  continue  to  apply  the  old 
laws  whose  injustice  is  openly  recognized.  To  this 
fundamental  argument  considerations  of  practical  con- 
venience are  added.  If  the  courts  of  the  Empire  apply 
always  its  own  law  to  the  facts  brought  before  them,  it 
will  have  to  do  with  only  one  law  and  that  one  well  known. 
It  will  ignore  foreign  laws,  as  well  as  those  formerly  in 
force,  and  since  abrogated.  It  is  only  on  this  condition 
that  the  old  laws  lose  their  force,  and  there  results  an 
incontestable  clearness  and  simplicity  of  judicial  usage. 

Despite  the  force  of  these  arguments,  science  as  well 
as  practice  has  accepted  the  opposite  theory,  according 
to  which  that  law  should  be  applied  in  whose  sphere  of 
domination  the  facts  arose.  This  opinion  rests  every- 
where upon  the  fact  that  it  is  only  by  the  guarantee  of 


POSITIVE   LAW  479 

the  law's  authority  that  the  acquisition  of  a  right  be- 
comes fixed.  A  law  cannot,  in  fact,  be  followed,  if  it  is 
believed  that,  when  the  facts  are  produced  before  a 
court,  some  other  law  will  be  applied  to  them.  Rights 
can  be  settled  only  if,  on  each  new  discussion  before  a 
tribunal,  the  same  law  is  always  applied  to  them.  If 
it  were  otherwise,  the  same  right  might  belong  to  me 
and  at  the  same  time  not  do  so.  It  is  necessary  to  note, 
also,  that  the  time  and  place  of  the  trial  depend  either  upon 
a  combination  of  fortuitous  circumstances  or  upon  the 
will  of  interested  persons,  but  can  have  no  connection 
with  the  fact  itself.  That  fact  remains  the  same, 
whether  the  tribunal  be  Russian  or  French,  or  the  trial 
take  place  this  year  or  next.  On  the  other  hand,  the 
time  and  place  of  the  origination  of  the  facts  have  great 
influence  over  them.  The  very  character  of  the  act 
depends  greatly  on  the  environment  in  which  it  is  done, 
but  this  is  determined  by  time  and  place.  One  may 
say  that  the  law  within  whose  sphere  the  given  fact  arose 
is  like  a  part  of  the  social  atmosphere  which  surrounded 
the  fact  and  helped  determine  its  performance.  Being 
a  human  action,  it  would  be  very  unjust  to  pass  upon  it 
in  accordance  with  a  law  which  the  man  could  not  have 
had  in  view  when  performing  it. 

The  principle  according  to  which  the  new  law  ought 
not  to  be  applied  before  it  has  been  published,  or,  in 
other  terms,  the  principle  according  to  which  a  law 
ought  not  to  have  retroactive  effects,  rests  upon  still 
other  considerations.  If  the  state  should  refuse  to  apply 
to  facts  laws  which  it  was  prescribing  at  the  moment 
when  those  facts  arose,  such  a  use  of  power  would 
reduce  the  authority  of  the  state  and  deprive  its  laws 
of  all  obligatory  character.  The  making  of  laws,  and 
giving  them  a  retroactive  effect,  would  deprive  them 
of  any  general  objective,  impartial  character.  When 
laws  are  made  applicable  only  to  the  future,  it  is  quite 


480  THEORY  OF  LAW 

uncertain  to  what  facts  they  will  be  applied,  whose  inter- 
ests they  will  serve  or  harm,  and  so  subjective  considera- 
tions of  a  personal  kind  yield  to  others  of  a  more  general 
and  objective  character.  If,  on  the  contrary,  the  law 
is  made  to  apply  to  already  accomplished  facts  known 
to  all  the  world,  subjective  considerations  would  take 
the  first  place,  and  the  law  might  easily  become  a  per- 
sonal weapon  for  this  or  that  individual. 

As  to  laws  of  different  states,  it  is  enough  to  say  that 
the  simple  application  of  the  law  of  the  state  in  which 
the  judgment  is  rendered  would  be  an  absolute  contra- 
diction to  the  interests  of  the  international  community. 
A  stranger  in  a  country  other  than  his  own  would  be, 
in  fact,  deprived  of  all  his  rights,  since  the  rights  which 
he  has  in  his  own  country  he  surely  does  not  hold  at 
the  will  of  foreign  legislation. 

Such  are  the  arguments  which  compel  us  to  accept, 
for  the  determination  of  the  correlation  between  the 
laws  of  different  epochs  and  different  states,  the  prin- 
ciple that  the  whole  fact  ought  to  be  judged  according 
to  the  law  under  which  it  was  produced.  This  principle 
in  itself  is  very  simple,  but  to  comprehend  the  whole 
extent  of  its  application,  its  whole  use  in  special  cases, 
it  is  necessary  to  give  it  a  very  careful  study.  The 
notions  of  law  and  of  its  sphere  of  action  are  already 
known  to  us.  Law,  moreover,  means  here  every  general 
legal  rule,  whether  created  by  legislative  act  or  not; 
the  product  of  customs  and  of  judicial  decision,  for  ex- 
ample. We  shall  stop  only  to  analyze  some  notions  of 
legal  facts  and  of  their  origination. 

The  universe  which  surrounds  us  presents  an  unbroken 
connection  of  different  changes,  which  we  recognize  by 
grouping  them  in  some  way  as  distinct  facts,  each  hav- 
ing a  scientific  bearing  or  an  historic,  moral,  economic 
or  legal  one.  This  grouping  is  not  determined  in  any 
objective  way  and  this  notion  of  a  distinct  fact  is  not 


POSITIVE   LAW  481 

absolute  but  relative.  We  consider  the  same  succession 
of  phenomena  sometimes  as  a  combination  of  several 
facts,  sometimes  as  one  distinct  fact.  It  all  depends 
on  the  purpose  which  guides  us. 

What  is  a  distinct  legal  fact?  It  is  a  combination  of 
changes  such  as  taken  together  have  a  legal  effect,  but 
since  the  legal  effect  of  a  fact  depends  exclusively  upon 
the  application  of  a  legal  rule  which  it  sets  in  motion, 
one  can  say  in  a  more  precise  way  that  a  distinct  legal 
fact  is  the  combination  of  changes  which  taken  together 
bring  about  an  application  of  law. 

The  legal  fact  may  be  quite  complex;  it  may  consist 
of  several  acts  or  circumstances.  A  crime,  as  a  legal 
fact,  may  be  composed  of  different  elements  whose 
common  presence  is  necessary  to  make  it  a  crime. 
Taken  separately  these  elements  will  not  constitute  a 
legal  fact,  because  they  will  not  bring  about  any  appli- 
cation of  the  criminal  law.  The  intention,  taken  sepa- 
rately, is  not  yet  a  legal  fact,  and  it  may  be  connected 
with  any  other  fact. 

Legal  facts  are  very  different  from  each  other  and  can 
be  differently  grouped.  It  will  be  more  convenient  for 
us  to  group  them  conformably  to  the  questions  which 
form  the  subject  of  judicial  decision.  We  shall  thus 
more  easily  reach  our  end,  which  is  to  know  what  laws, 
indigenous  or  foreign,  old  or  new,  ought  to  control  the 
tribunal. 

The  question  which  a  tribunal  is  charged  with  settling 
can  be  reduced  to  four  different  categories,  1st,  Is  the 
indicated  law  established?  2d,  What  are  the  conditions 
for  the  application  of  that  law?  3d,  Is  that  law  still  in 
force?  4th,  What  are  the  forms  established  by  law  for 
passing  upon  the  given  affair,  and  have  these  forms  been 
observed? 

The  criminal  tribunal  is  charged,  first  of  all,  with  set- 
tling the  following  question:  Is  there  a  right  to  punish? 


482  THEORY  OF  LAW 

Then  it  settles  the  condition  for  applying  the  penal 
law  and  fixes  the  penalty.  If  there  is  doubt  as  to  the 
question  whether  the  law  is  not  extinct  by  prescription 
or  by  some  other  alteration,  it  is  necessary  to  settle  the 
question  anew. 

The  question  of  knowing  if  the  forms  instituted  by 
law  have  been  properly  observed  is  of  little  importance 
in  criminal  jurisdiction,  but  before  the  civil  tribunal  is 
often  the  principal  question,  since  each  contract  is  con- 
nected with  an  obligatory  form  whose  non-observance 
produces  the  nullity  of  the  contract. 

Each  of  these  four  questions  must  be  resolved  in 
conformity  with  the  corresponding  group  of  actual  cir- 
cumstances which  form,  from  this  point  of  view,  a  distinct 
legal  fact.  We  shall  regard  as  distinct  legal  facts  the 
circumstances  which  bring  about  the  establishment,  the 
application,  or  the  cessation  of  the  law,  and  also  the 
observance  in  legal  action  of  legally  required  forms. 
Each  of  these  facts  ought  to  be  treated  in  accordance 
with  the  law  under  whose  control  it  was  brought  about. 
Quite  frequently  each  of  these  distinct  facts  in  the 
course  of  a  single  affair  requires  to  be  discussed  accord- 
ing to  different  laws,  because  the  establishment,  the 
realization,  the  cessation,  of  the  same  right  can  very 
easily  have  taken  place  under  different  laws. 

The  notion  of  legal  facts  which  we  have  thus  isolated 
is  very  important  in  explaining  the  question  now  under 
examination.  After  having  explained  it,  it  will  be  easy 
to  understand  that  the  realization  of  a  right  is  the 
work,  not  of  the  time  and  place  of  the  acquisition  of  the 
right,  but  of  the  time  and  place  of  the  realization  itself, 
because  the  acquisition  and  the  realization  are  distinct 
facts  and  each  is  to  be  judged  according  to  the  law  of 
its  accomplishment.  Thus,  all  the  owners  in  a  given 
time  and  place  can  realize  their  right  of  property  quite 
independently  of  the  place  or  moment  of  its  acquisition. 


POSITIVE  LAW  483 

It  results  that  the  criminal  character  of  an  action  is 
decided  according  to  the  law  of  the  time  and  place  of 
the  action  itself,  but  the  fixing  of  the  penalty  by  the 
tribunal,  so  far  as  it  is  a  distinct  legal  fact,  is  the  realiza- 
tion by  the  state  of  its  right  acquired  over  that  person 
by  reason  of  the  action  which  he  has  done.  It  is  to  be 
considered  according  to  the  time  and  place  of  the 
tribunal. 

Since  the  form  of  legal  action  has  also  a  legal  weight, 
its  observance  or  non-observance  is  to  be  regarded  as  a 
distinct  legal  fact  and  ought,  consequently,  to  be  treated 
according  to  the  law  of  the  time  and  place  where  the 
act  is  performed.  For  this  reason  the  form  of  judicial 
action,  in  other  words,  the  administration  of  justice,  is 
fixed  by  the  law  of  the  tribunal,  and  not  by  that  of  the 
place  and  time  in  which  the  act  was  performed.  This 
is  the  more  evident  from  the  fact  that  in  the  same  judi- 
cial matter  one  is  very  often  compelled  to  consider  very 
different  facts,  connecting  them  with  times  and  places 
also  very  different,  while  it  is  impossible  to  apply  to  the 
same  process  different  forms  of  the  administration  of 
justice. 

Since  legal  facts  are  very  complex,  it  may  be  asked 
at  what  precise  moment  a  fact  is  to  be  considered  as 
accomplished.  Considering  that  the  fact  receives  a  legal 
effect  only  after  the  performance  of  its  final  element, 
the  time  and  place  of  the  accomplishment  of  the  last 
element  must  be  regarded  as  that  of  the  legal  fact  itself. 
It  may  happen,  still,  that  the  performer  of  the  act  finds 
himself  in  one  jurisdiction  while  the  result  of  his  act 
appears  in  another.  Where,  then,  is  the  act  considered 
as  performed?  The  criminalists,  disposed  to  give  to 
the  subjective  element  the  leading  rdle,  determine  this 
question  by  saying  that  it  is  the  place  in  which  the  doer 
finds  himself,  which  is  to  be  considered  as  that  of  his 
act.  The  civilists  turn  to  the  opposite  opinion.  The 


484  THEORY  OF  LAW 

realization  by  a  person  who  finds  himself  within  a  state 
of  his  right  over  property,  over  immovables  situated 
in  another  state,  ought  to  be  discussed  according  to  the 
law  of  the  place  where  the  property  is.  Rights  to 
obligations  are  discussed  according  to  the  law  of  the 
place  of  the  debtor  and  not  of  the  creditor.  It  would, 
perhaps,  be  more  equitable  to  hold  to  the  same  opinion 
in  criminal  matters,  since  in  such  cases  crime  is  not 
committed  except  when  it  has  produced  some  results 
which  manifest  themselves  outside  of  the  jurisdiction  in 
which  the  criminal  is  fcnmd.  When  a  man  on  one  side 
of  a  frontier  shoots  at  another  man  on  the  other  side, 
the  realization  of  a  criminal  intention,  the  deprivation 
of  life,  takes  place  where  the  man  is  slain. 

The  determination  of  the  mutual  relations  between 
the  laws  of  different  epochs  and  different  places  can  be 
reduced,  it  is  seen,  to  a  single  common  principle,  but 
these  relations  are  none  the  less  very  complex.  They 
depend  upon  two  circumstances  of  fact. 

In  the  submission  to  action  of  laws  of  different  epochs 
the  legal  relation  is  effected  by  the  action  of  the  laws  in  a 
single  fixed  order,  first,  that  of  the  old  law,  and  then 
that  of  the  new.  The  inverse  order  is  impossible.  In 
case  of  conflict  between  laws  of  different  states,  the 
difficulty  is  much  greater.  The  same  relation  can,  turn 
and  turn  about,  be  transferred  from  one  country  to  the 
other,  and  vice  versa.  This  permits  interested  persons 
to  move  from  one  country  to  another  in  order  to  avoid 
the  requirements  of  the  laws  of  one  or  the  other  country. 

A  more  important  complication  results  from  the  fol- 
lowing fact:  When  old  laws  are  replaced  by  new  ones 
these  extend  their  action  necessarily,  at  once,  over  all 
the  elements  of  legal  relationship.  It  may  happen,  how- 
ever, that  the  subject  of  a  relationship  falls  under  the 
action  of  the  new  law  while  the  object  of  it  remains 
under  the  old.  Very  often  it  happens  that  the  subject 


POSITIVE  LAW  485 

of  the  relation  is  in  one  jurisdiction  while  its  object  is 
in  another.  Conformably  to  the  rule  above  indicated, 
each  realization  of  right  in  this  case  is  considered  as 
taking  place  where  the  object  of  the  right  is. 

We  ought  to  observe,  in  conclusion,  that  in  practice, 
thanks  to  different  political  considerations,  some  infrac- 
tions are  admitted  in  the  application  of  the  general 
principle  which  determines  the  correlation  between  the 
laws  of  different  epochs  and  of  different  places. 


486  THEORY  OP  LAW 


Section  63.     The  Interpretation  of  Laws 

SAVIGNY.     System.     Band  I,     s.  206. 

GRADOVSKY.  Judicial  Interpretation  of  Laws.  Journal  of  Crim- 
inal and  Civil  Law  (Russian),  1874,  No.  1. 

TAGANTZEV.  Lectures  on  Russian  Criminal  Law.  Part  I. 
p.  346. 

Criticism  fixes  the  authenticity  of  the  source  of  laws 
as  a  whole  and  of  their  several  parts.  The  principles  of 
the  correlation  of  the  laws  of  different  times  and  places 
settle  precisely  what  laws  are  applicable  to  special  cases. 
But  it  is  not  enough  to  know  what  laws  are  to  be  applied. 
It  -is  necessary  besides  to  apply  them.  For  this,  it  is 
required  first  of  all  to  explain  the  meaning  and  the  field 
of  application  of  the  legal  rule,  and  this  is  the  task  of 
interpretation. 

Since  positive  law  must  come  from  some  of  the  sources 
of  law  the  will  of  the  legislator  is  law  only  so  far  as  it  is 
found  in  the  legislative  act.  If  by  accident  or  ignorance 
the  legislator  has  expressed  his  will  in  a  law  of  a  form 
more  restricted  than  such  will  would  require,  the  law 
nevertheless  remains  within  the  limits  of  the  expression. 
On  the  other  hand,  the  law  serves  as  a  source  of  rights 
only  within  the  limits  of  the  expression  of  the  legis- 
lator's will.  If  by  chance  the  expressions  employed 
are  more  extensive  in  parts  than  he  intended,  that 
cannot  be  considered  as  law  which  goes  beyond  his 
real  intention.  A  defect  or  irregularity  of  language 
cannot  be  considered  as  a  source  of  law.  The  task  of 
interpretation  is,  then,  that  of  explaining  the  will  of  the 
legislator  within  the  limits  of  its  expression  in  the  legis- 
lative act. 

Interpretation  like  criticism  is  not  an  exclusive  attri- 
bute of  jurisprudence.  It  is  found  in  all  science  which 


POSITIVE  LAW  487 

has  to  do  with  written  sources, — in  history  and  theology, 
for  example.  Rules  might  be  given  applying  equally 
to  the  interpretation  and  to  the  criticism  of  legal  science 
and  of  historical  manuscripts  or  of  religious  books;  but 
criticism  in  jurisprudence  presents  some  peculiarities, 
as,  for  instance,  the  question  as  to  whether  or  not 
a  law  is  constitutional.  There  are,  then,  two  ele- 
ments in  juridical  interpretation,  the  general  and  a 
special  one. 

The  general  element  consists  in  the  ordinary  logical 
and  grammatical  processes  of  interpretation.  Each 
written  source  contains  a  human  idea  expressed  in 
words,  but  the  idea  and  the  words  are  subject  to  certain 
logical  and  grammatical  rules.  To  understand  what  is 
written  or  said  it  is  necessary  to  know  these  rules.  The 
interpreter  should,  as  Savigny  says,  reproduce  all  the 
means,  the  whole  progress,  of  the  composition  of  the  law; 
and  he  should  use  for  this  purpose  the  corresponding 
logical  and  grammatical  form.  Grammatical  rules  vary 
with  epochs.  The  interpreter  should  apply  to  each 
given  law  the  rules  of  the  time  of  its  composition.  More- 
over, just  as  each  writer  has  his  own  peculiarities  of 
language,  every  legislator  has  his  also,  and  it  is  an 
additional  task  of  the  interpreter  to  study  the  indi- 
vidual peculiarities  in  the  style  of  the  law-giver. 

Logical  rules  do  not  change,  but  the  conceptions  which 
they  express  may  be  stated  in  various  ways.  So,  in  the 
interpretation  of  legal  rules,  heed  must  be  given  to  the 
changes  in  the  conceptions  which  they  embrace.  The 
legislator,  it  is  said,  observed  the  rules  of  logic  and 
grammar  in  expressing  his  will.  This  is  only  a  supposi- 
tion (presumption).  Therefore,  if  we  are  satisfied  that 
in  a  given  case  the  legislator  has  committed  some  logical 
or  grammatical  fault,  as  very  often  happens,  this  doc- 
trine loses  all  its  force  and  we  cannot  then  accept  the 
interpretation  it  would  give  to  the  law.  It  is  the  same 


THEORY  OF  LAW 

way  when  the  logical  and  grammatical  interpretation 
leads  to  results  evidently  absurd. 

To  explain  how  it  is  necessary  to  understand  the  law 
conformably  to  the  spirit  of  the  legislator,  and  perhaps 
in  spite  of  logical  and  grammatical  rules,  the  history  of 
the  law  must  be  known.  The  first  scheme  of  the  law 
must  be  reported,  and  then  the  different  changes  to 
which  it  was  subjected,  the  debates  before  the  legisla- 
tive body.  These  are  so  many  materials  for  explaining 
how  a  given  proposition  of  law  came  about  and  conse- 
quently may  be  very  useful  in  case  of  doubt  as  to  its 
meaning. 

Comparison  between  the  articles  of  our  Code  and  the 
sources  from  which  they  come  is  also  very  important. 
In  composing  the  Code  the  legislator  wished  to  express 
in  his  articles  the  same  rules  as  those  which  are  con- 
tained in  former  laws,  and  not  to  make  new.  So  legis- 
lative dispositions  according  to  which  the  Code  has 
been  formed  have  all  the  value  of  legislative  materials. 
With  us,  it  is  true,  it  is  a  custom  to  consider  the  com- 
parison between  articles  of  the  Code  and  the  previous 
enactments  which  gave  birth  to  them  an  historical 
interpretation.  This  opinion,  as  we  shall  see  later,  is 
entirely  erroneous. 

The  special  element  in  juridical  interpretation  presents 
much  greater  interest  than  the  preceding.  It  rests  upon 
a  special  correlation  of  succeeding  rules  and  of  those 
simultaneously  existing.  This  correlation  is  not  at  all 
identical  with  that  which  exists,  for  example,  in  historical 
or  literary  memoirs.  The  combination  of  historical 
memoirs,  connecting  with  a  given  epoch,  do  not  form  a 
whole.  Each  of  them  can  be  separately  interpreted, 
and  the  appearance  of  some  new  ones  makes  no  change 
in  the  meaning  of  those  in  existence  before.  To  be 
sure,  these  new  memoirs  may  assist  in  getting  the  mean- 
ing of  the  old  ones,  but  do  not  thereby  change  that  meaning. 


POSITIVE  LAW  489 

The  combination  of  legal  rules  existing  in  a  given 
society  at  a  given  date,  exhibits,  on  the  contrary,  the 
whole  juridical  order  of  that  society,  and  the  manner  in 
which  each  rule  is  to  be  applied.  To  the  same  subject 
there  cannot  be  applied  at  the  same  time,  several  con- 
flicting rules.  So  the  combination  of  legal  rules  forms 
a  whole,  a  system.  The  birth  of  new  rules  changes  it, 
either  by  limiting  or  enlarging  the  scope  of  the  system. 
Legal  rules  resemble  in  this  respect  religious  dogmas, 
which  also  form  a  systematic  whole. 

As  to  the  correlation  between  the  successive  rules, 
here,  too,  an  essentially  peculiar  character  is  observed. 
A  new  rule  always  abrogates  as  to  the  matter  which  it 
determines,  any  rule  which  may  have  previously  pre- 
vailed. 

This  correlation  of  successive  rules  presents  another 
original  peculiarity.  It  cannot  be  said  that  an  earlier 
historic  memoir  has  not  of  itself  the  force  of  a  later  one, 
and  if  it  relates  to  the  same  historical  event,  the  old  is 
preferred  to  the  new.  As  to  religious  dogmas,  they  do 
not  present  these  exclusive  relations.  God  in  his  wis- 
dom does  not  contradict  himself  nor  the  New  Testament 
abrogate  the  Old.  The  correlation  just  indicated  between 
legal  rules  gives  to  their  interpretation  a  peculiar  char- 
acter, and  because  of  this  fact  there  must  be  a  careful 
distinction  made  between  systematic  interpretation  and 
historical  interpretation. 

Historical  interpretation  is  the  explaining  of  the  mean- 
ing of  a  rule  by  comparing  it  with  the  rule  which  was 
acting  as  to  the  same  matter  at  the  moment  when  the 
new  rule  was  promulgated.  If  it  is  thus  defined,  the 
explanation  of  the  articles  of  our  Code  by  means  of 
comparison  with  the  rulings  cited  under  these  articles 
is  not  historical  interpretation.  The  article  does  not 
replace  the  rules  which  are  cited  by  it,  because  it  is  only 
a  new  expression  of  the  same  rule.  There  is  lacking 


490  THEORY  OF  LAW 

here  the  prime  condition  for  all  historical  interpretation 
the  comparison  between  two  successive  rules.  The  com- 
parison between  the  prior  legislative  acts  and  the 
articles  to  which  they  serve  as  source,  presents  abso- 
lutely the  same  character  as  that  between  the  original 
of  the  law  and  its  official  edition.  In  both  cases  we 
compare  the  two  official  forms  of  the  expression  of  a 
single  rule. 

The  necessity  for  historical  intrepretation  often  arises 
from  the  fact  that  very  frequently  the  conception  of  the 
new  law  is  wholly  fixed  by  the  law  which  it  abrogates. 
Just  as  it  is  impossible  sometimes  to  understand  the 
answer  without  knowing  the  preceding  question,  so 
sometimes  a  law,  which  abrogates  another,  can  be  under- 
stood only  when  the  abrogated  law  is  understood.  If 
sweeping  legislation,  embracing  a  whole  branch  of  law, 
is  under  consideration,  only  an  attentive  comparison 
between  the  old  law  and  the  new  can  decide  whether  or 
not  the  new  completely  abrogates  the  old,  and  this 
especially  because  it  may  happen  that  the  basis  of  the 
two  laws  is  quite  different.  The  new  law,  by  connec- 
tion with  the  old,  may  have  several  results, — it  may 
abrogate  it  completely  and  replace  it  by  a  new  act 
(abrogatio),  or,  may  modify  it  in  part  only  (derogatio), 
or,  again,  may  complete  it  (subrogatio).1  By  systematic 
interpretation  we  mean  the  explanation  of  a  rule  made 
by  comparing  this  rule  to  the  whole  system  of  law. 
Thus,  the  explanation  of  the  rule  by  comparing  it  with 
the  title  of  the  section  of  the  law  which  contains  it,  is 
only  a  special  form  of  logical  interpretation.  The  system 
of  the  legislative  act,  the  arrangement  of  its  different 
articles,  are  a  result  of  the  logical  development  of  the  thing 
determined  upon,  but  we  must  not  confuse  the  plan  of 
the  legislator,  subject,  like  all  men,  to  the  rules  of  logic, 
and  the  system  of  legal  rules  acting  in  a  given  society, 

1  Gluck,  Commentar,  I.     s.  5-14. 


POSITIVE  LAW  491 

which  has  its  basis  in  the  law  of  solidarity  between 
coexisting  phenomena.  This  last  system  can  serve  as  a 
basis  for  systematic  interpretation.  If  such  a  distinc- 
tion is  not  recognized,  the  explanation  of  the  law  will 
be  in  accordance  with  the  plan  of  the  whole  article,  con- 
sidered separately,  and  this  will  be  logical  interpreta- 
tion; but  the  explanation  according  to  the  arrangement 
of  the  articles  considered  as  an  entire  succession  will  be 
systematic  interpretation. 

So  far  as  the  article  formulates  no  principle  peculiar 
to  itself  it  is  permissible  to  the  editor  to  combine  several 
into  one,  or,  on  the  contrary,  to  make  several  out  of 
one.  This  is  why  the  order  of  exposition  of  a  distinct 
article  must  be  considered,  and  even  the  order  of  dis- 
position of  several  articles,  as  the  basis  of  logical  and  not 
systematic  interpretation. 

This  is  not  a  mere  question  of  words.  Since  with  us 
the  interpretation  according  to  titles  of  chapters  is 
ordinarily  a  systematic  interpretation,  we  neglect  to 
search  for  another.  Besides  the  distinction  of  interpre- 
tation according  to  different  processes,  there  was  formerly 
a  distinction,  according  to  subject,  between  doctrinal 
and  legal  interpretation.  The  first  is  interpretation  by 
persons  charged  with  applying  the  law,  who  derive  their 
influence  from  the  science  of  it.  The  second  is  an 
interpretation  based  on  habit,  or  even  on  legislation 
itself,  and  has  the  authority  of  custom  or  that  of  legis- 
lative power;  but,  as  Savigny  has  indicated,  doctrinal 
interpretation  should  be  considered  by  itself.  The  pre- 
tended interpretation  by  practice  is  only  custom. 
Authentic  interpretation  is  itself  only  law.  The  force 
of  that  strange  expression,  legislative  interpretation  of 
the  law,  is  sometimes  under  the  cover  of  a  legislative 
interpretation  to  make  the  former  legislator  say  the 
contrary  of  his  original  thought.  We  must  not  confuse 
with  interpretation  the  application,  which  is  sometimes 


492  THEORY  OF  LAW 

made,  of  a  rule  by  analogy.  Interpretation  is  the 
explanation  of  a  rule.  Analogy  is  the  application  of  this 
rule  to  some  case  which  was  not  foreseen  in  the  law,  but 
which  presents  judicially  an  analogy  to  the  cases  for 
which  the  law  was  made.  As  often  as  we  apply  a  rule 
drawn  from  some  distinct  enactment  or  from  some 
separate  system  of  legislation  we  distinguish  between 
the  analogy  of  this  legislation  and  the  law. 


POSITIVE  LAW  493 


Section  64.     The  Scientific  Study  of  Law 

IHERING.  Geist  des  romischen  Rechts.  II.  2  Abth.  3  Auf. 
1875.  s.  309-389. 

KORKUNOV.  Scientific  Study  of  Law.  Journal  of  Civil  and 
Criminal  Law,  1882,  No.  4,  pp.  1-29,  and  No.  5,  pp.  194-195. 

Interpretation  explains  the  meaning  of  different  legal 
rules.  If  such  meaning  is  not  understood  the  rule  can 
get  no  application.  So,  interpretation  is  an  indispen- 
sable condition  for  the  application  of  legal  rules,  but 
interpretation  alone  does  not  answer.  It  cannot  give 
complete  meaning  to  the  law.  Interpretation,  in  the 
first  place,  being  the  explanation  of  a  single  meaning  of 
the  indicated  rule  is  connected  too  intimately  with  the 
law  of  a  given  country  and  a  given  time.  When  we  need 
to  apply  a  foreign  law,  or  even  a  newly  promulgated 
law  of  our  own  country,  the  interpretation  of  the  old 
laws  is  useless.  If  the  study  of  law  were  limited  solely 
to  interpretation,  the  jurist  of  each  state  and  each  new 
generation  would  be  compelled  to  begin  anew  the  com- 
plete study  of  law,  for  laws  change  more  than  once  in 
the  course  of  a  single  generation.  Despite  the  variety 
and  number  of  changes  in  the  law,  there  are  permanent 
elements,  or  at  least  some  so  stable  that  they  do 
not  change  at  the  same  time  with  any  definite  new  legis- 
lation. Legal  rules  as  to  relations  change  much  more 
quickly  than  the  relations  themselves  and  their  funda- 
mental elements.  For  this  reason,  if  we  accept  as  the 
basis  of  legal  studies  not  legal  rules,  as  happens  in 
interpretation,  but  legal  relations,  we  shall  get  more 
stable  and  solid  conclusions. 

Another  consideration,  too,  leads  to  the  preference 
for  the  study  of  relations  over  that  of  the  interpretation 
of  rules.  We  have  seen  that  legal  rules  cannot  be  con- 


494  THEORY  OF   LAW 

sidered  separately,  even  for  the  purpose  of  pure  inter- 
pretation. Since  they  act  together  in  society,  the  rules 
necessarily  constitute  a  whole,  and  on  this  fact  is  based 
systematic  interpretation. 

This  system  does  not  result  from  the  external  form  of 
legislative  collections,  but  from  the  organic  combination 
of  the  relations  to  which  legal  rules  are  applied.  For 
this  reason  the  study  of  legal  relations  is  necessary  to  the 
construction  of  such  a  system. 

This  study  leads  to  something  unified,  something 
systematic  in  law,  that  is,  to  something  exclusively 
scientific,  and  it  is  in  this  sense  that  Ihering  could  call 
interpretation  inferior  jurisprudence,  and  could  oppose 
to  it  as  superior,  analysis,  the  construction  of  systematic 
relations.  In  what  consist  the  processes  of  scientific 
study  of  law?  Science  generalizes  our  perceptions  and 
replaces  the  immediate  but  superficial  concrete  observa- 
tion by  a  more  abstract  and  general  knowledge.  It 
studies  the  separate  perceptions  only  as  necessary  means 
for  generalization.  It  presses  forward  to  conclusions 
applicable  to  whole  groups  of  like  phenomena  and  thus 
it  replaces  the  knowledge  of  all  special  phenomena  by 
the  general  study  of  groups.  But  generalization  cannot 
operate  upon  the  facts  themselves.  These,  at  least, 
immediate  observation  furnishes.  In  comparing  the 
facts  of  immediate  observation,  before  they  are  decom- 
posed into  their  integral  elements,  we  can  observe  only 
faint  resemblances,  which  may  lead  us  into  error  and 
bring  about  the  combining  of  phenomena  which  have 
almost  nothing  in  common. 

To  make  generalizations  more  certain,  the  materials, 
the  facts,  which  present  themselves  to  our  observation, 
must  be  considered  beforehand.  For  this  purpose  we 
analyze  our  notions,  decompose  them,  to  find  out  their 
general  elements  and  the  different  combinations  they 
make.  Then  we  combine  together  these  general  ele- 


POSITIVE  LAW  495 

ments  and  the  notions  which  we  have  found  by  analysis 
just  as  all  true  scientific  research  requires,  and  we  thus 
construct  some  juridical  conceptions,  original  ideal  con- 
structions, such  as  all  science  tends  toward.  Finally, 
these  scientific  combinations,  collected  together,  we 
classify,  guiding  ourselves  by  their  common  resemblances 
and  differences  in  grouping  them. 

All  these  processes,  observations,  analysis,  construc- 
tion, classification,  are  the  general  processes  of  all  scien- 
tific research  and  do  not  belong  exclusively  to  the  science 
of  law.  This,  however,  has  not  always  been  understood 
by  jurists,  at  least  so  far  as  regards  analysis  and  con- 
struction. Thus  Ihering  in  his  theories  of  analysis  and 
judicial  construction  refers  for  his  explanations,  not  to 
general  principles  of  scientific  method  but  to  the  alpha- 
bet to  explain  analysis,  and  to  organic  bodies  to  explain 
construction.  Mouromtzev  connects  directly  all  the 
processes  of  juridical  construction  "with  peculiarities 
of  the  juridical  conception,"!  which,  says  he,  "has  only 
a  practical,  conventional  sphere  and  cannot  serve  as  a 
means  for  scientific  explanation." 

We  shall  try  to  prove  that  neither  in  construction 
nor  in  analysis,  can  be  seen  merely  peculiarities  of 
juridical  conception,  but  that,  on  the  contrary,  we  are 
here  in  the  presence  of  a  special  application  of  the  ordi- 
nary scientific  principles  of  all  generalization.  We  will 
take  first  juridical  analysis. 

The  jurist,  contrary  to  current  ideas,  does  not  regard 
each  legal  case  as  a  complete  whole.  On  the  contrary, 
he  separates  the  whole  question  into  several  elements, 
seeks  to  distinguish  these  from  one  another,  and  applies 
a  solution  to  each  of  the  distinct  elements  of  which  the 
question  is  composed.  Where  every  other  savant  sees 
an  indivisible  question,  admitting  of  only  one  answer, 
affirmative  or  negative,  the  jurist  finds,  on  the  contrary, 

»  Definition  and  Fundamental  Divisions  of  Law,  93. 


496  THEORY  OF  LAW 

a  series  of  questions  of  which  each  requires  a  distinct 
solution.  Such  a  decomposition,  such  an  analysis, 
applied  to  isolated  practical  questions,  might  certainly 
often  appear  as  a  useless  complication  of  the  question. 
But  if,  not  limiting  ourselves  to  the  study  of  one  case,  we 
consider  a  succession  of  them,  we  shall  then  understand 
that  legal  analysis  confuses  nothing  and  complicates 
nothing.  The  analysis,  in  fact,  leads  to  a  small  number 
of  identical  fundamental  elements,  which  go  to  make 
up  the  whole  infinite  variety  of  juridical  cases.  Thus, 
we  replace  by  the  study  of  some  essential  elements  the 
study  of  all  possible  cases,  and  get  in  this  way,  —  is  it  not 
true? — a  great  economy  of  time  and  labor. 

Can  this  process  of  juridical  analysis  be  regarded  as  an 
original  peculiarity  of  jurisprudence?  To  show  the  con- 
trary a  very  little  reasoning  will  suffice.  The  process  of 
analysis,  which  we  make  upon  juridical  conceptions, 
can  be  considered  as  the  general  processes  for  the  forma- 
tion of  those  conceptions.  Sigwart  considers  such  an 
analysis  as  the  fundamental  question  in  every  theory  of 
methods.1  In  the  old  treatises  on  logic,  it  is  true,  the 
process  of  the  formation  of  our  conceptions  was 
explained  in  a  more  exclusive  fashion.  It  was  explained 
as  if  we  formed  all  our  general  conceptions  always  in  the 
same  way,  by  the  successive  omission  of  signs,  and  the 
correlation  of  genus  and  species  was  recognized  as  the 
general  form  of  correlations  between  conceptions.  This 
is  evidently  what  leads  Ihering  to  search  for  an  explana- 
tion of  juridical  analysis,  not  in  the  general  processes 
of  logical  analysis,  but  in  the  analogy  which  it  presents 
to  the  alphabet.  In  the  old  treatises  on  lo'gic,  indeed, 
it  would  be  hard,  perhaps,  to  find  a  suitable  formula 
for  explaining  the  distinction  between  concrete  and 
abstract  elements,  between  dependent  and  independent 
elements.  Ihering  explains  this  distinction  by  comparing 

» Sigwart.    Logik.     B.  II.     Methodenlehre,  1878,  s.  5. 


POSITIVE  LAW  497 

it  to  that  between  vowels  and  consonants.  The  vowel  of 
the  juridical  alphabet  is  that  which  is  found  in  life  existing 
in  an  independent  way,  that  is,  a  transfer  of  property,  a 
will,  etc.  The  consonant  is  what  is  incomprehensible 
except  as  an  attribute  of  some  other  thing,  such  as,  for 
example,  the  notion  of  holding  over  a  term.  Well,  for 
this  distinction,  I  repeat,  it  will  be  difficult  to  find  in 
the  old  treatises  on  logic  a  suitable  explanation,  but  the 
recent  German  logicians,  Sigwart,  Lotze,  Wundt,  do 
not  recognize  the  omission  of  signs  as  a  sole  general 
process  for  creating  generalizations,  as  a  sole  general 
form  for  their  correlation.  According  to  Wundt  the 
correlation  of  genus  and  species  is  only  one  of  the 
possible  forms  for  the  correlation  of  notions,  and  gen- 
erality is  the  essential  attribute  of  notions,  only  in  the 
sense  in  which  each  of  these  notions  includes  elements 
entering  equally  into  the  formation  of  other  concep- 
tions, from  the  combination  of  which  depends  solely 
the  distinction  of  different  notions.1  So,  it  cannot  be 
said  that  from  the  more  or  less  abstract  character  of 
the  notion  depends  always  its  greater  or  less  generality. 
For  example,  the  notion  of  obligation  is  less  abstract 
than  that  of  injury,  but  one  cannot  say  that  it  is  at  the 
same  time  less  general.  It  is  not,  then,  the  omission 
of  individual  signs  which  is  the  process  of  generalizing, 
but  the  analysis  of  these  notions  into  their  elements  out 
of  which  they  are  formed.  There  is  no  need  of  seeking 
outside  of  logical  rules  for  the  explanation  of  analytical 
processes  in  jurisprudence.  Effort  has  been  made  in 
German  jurisprudence  to  profit  by  the  results  in  logic 
obtained  by  Sigwart  and  Lotze,  so  as  to  explain  the 
formation  of  juridical  conceptions.2 

What  Ihering  calls  logical  concentration  of  notions  is 
also  a  process  derived  from  general  logic.     It  acts  here 

i  Wundt,  Logic,  I.  1880V  pp.  8,  96. 

*  Rumelin,  Juiistische  Begriffsbildung,  1878. 


498  THEORY  OF  LAW 

in  determining  the  mutual  relations  between  notions. 
It  should  be  observed  that  Ihering  does  not  attend  to 
the  variety  of  forms  of  this  correlation.  The  correlation 
of  notions  can  be  not  only  a  relation  of  subordination, 
but  it  can  also  take  different  forms;  for  example,  recip- 
rocal opposition  (the  fortuitous  and  intentional  case), 
correlation  (right  and  duty),  contiguity  (dies  incertus, 
certus  quando,  conditio),  alternation  (right  to  things 
and  to  services),  etc. 

But  this  logical  concentration  of  Ihering  gives  unity 
only  in  a  restricted  degree.  In  order  that  this  unifica- 
tion may  include  also  general  elements  obtained  by 
analysis  there  must  be  a  synthesis  by  means  of  juridical 
construction.  Like  analysis,  juridical  construction  is 
no  special  peculiarity  of  legal  science.  It  is  a  general 
process  of  scientific  unification.  It  is  not  required  that 
we  regard  scientific  generalizations  as  simply  copies  of 
reality.  Such  copies  are  necessarily  obscure  and  indefi- 
nite. They  are  like  the  confused  impression  we  receive 
in  looking  at  several  diaphanous  pictures  placed  one 
upon  the  other  and  held  towards  the  light.  Their  colors 
and  contours  are  mingled  and  no  longer  precise.1  Cer- 
tainly generalizations  like  these  confused  impressions  do 
not  answer  the  purposes  of  science.  Perhaps  they  can 
answer  the  purposes  of  ordinary  life,  for  often,  in  fact, 
it  is  by  the  assistance  of  confused  and  obscure  notions 
that  we  are  guided  in  life.  But  science  requires  before 
all  things,  exactness,  clearness  and  precision.  In  truth, 
scientific  generalization  is  summarizing,  rather  than 
making  copies  of  reality.  All  scientific  generalizations 
are  ideal  constructions  presenting  original  combinations 
between  general  elements  of  conception  obtained  by 
analysis.  These  combinations  are  not  a  servile  copy  of 
reality.  They  are  made  up  freely,  conformably  to  the 
scientific  generalization,  and  for  this  reason  they  depart 

i  Lewis,  Problems  of  Life  and  Mind.  Vol.  I.  272-300. 


POSITIVE  LAW  499 

somewhat  from  all  reality.  Such  is  the  character  of 
generalizations  in  all  sciences  without  exception.  They 
are  none  of  them  a  copy  of  reality.  They  constitute,  on 
the  contrary,  an  ideal  construction.  For  example, 
when  it  is  said  that  the  moon  moves  in  a  fixed  orbit 
around  the  earth,  we  do  not  intend  that  for  a  simple 
description  of  the  fact.  It  is  merely  an  ideal  construc- 
tion, designed  to  make  the  moon's  movement  under- 
stood. In  fact  the  moon  does  not  describe  any  ellipse 
around  the  earth,  and  if  it  were  to  leave  behind  it  a 
visible  track,  that  track  would  not  appear  as  an  ellipse 
or  any  other  form  of  a  closed  figure,  but  as  a  waving, 
unclosed  line.  We  speak  in  the  same  way  in  studying 
crystals.  In  order  to  study  and  explain  their  phe- 
nomena the  savants  imagine  that  in  each  one  there  is  a 
certain  axis,  a  certain  line  by  which  the  nature  of  the 
crystal  is  determined.  In  certain  classes  of  crystals 
four  such  axes  are  counted;  in  others,  three  only.  They 
may  be  of  equal  length  or  all  perpendicular  to  each 
other.  According  to  the  number  of  these  axes,  their 
length  and  their  inclination,  crystals  are  divided  into 
seven  categories  which  have  as  their  basis  their  geometric 
form  or  their  physical  properties.  These  axes,  however, 
are  purely  imaginary.  All  crystallographic  science  rests, 
then,  on  a  purely  ideal  construction. 

Juridical  constructions  have  a  similar  value,  not 
merely  from  the  practical,  but  also  from  the  scientific 
point  of  view.  Between  them  and  astronomical  or 
crystallographic  constructions  there  is  no  essential  differ- 
ence. Of  course  the  methods  used  are  different,  but 
this  is  all  which  separates  them.  The  fundamental  pro- 
cess of  juridical  construction  consists  in  this,  that  the 
juridical  relations  which  exist  between  men  are  objective, 
that  is  to  say,  are  considered  as  independent  things,  aris- 
ing, subject  to  variations  during  their  existence,  and 
disappearing,  precisely  like  animated  beings.  They  are 


500  THEORY   OP  LAW 

distinguished,  besides,  in  their  organization,  their  struc- 
ture, their  subjects,  that  is  to  say,  the  individuals, 
between  whom  these  relations  exist,  and  their  objects, 
that  is  to  say,  the  forces  which  serve  for  the  formation 
of  relations.  In  every  legal  relation  one  recognizes  finally 
a  right  corresponding  to  an  obligation. 

Just  as  by  the  determination  of  the  number  of  axes 
of  their  length,  and  of  their  position,  one  reaches  a 
determination  of  the  properties  of  different  crystals,  so 
the  determination  of  the  properties  of  different  legal 
relations  permits  of  determining  their  subject  and  object 
and  the  conditions  of  their  establishment.  The  con- 
struction of  legal  relations  resembles  that  of  crystallo- 
graphic  systems.  It  is  an  ideal  construction,  employed 
for  the  purpose  of  legal  research,  and  for  this  reason 
criticism  of  legal  construction  has  not  exhausted  its 
role  when  it  has  answered  the  questions  as  to  whether 
this  legal  construction  corresponds  well  in  all  its  parts 
to  reality.  The  axes  of  the  crystal,  the  ellipse  which 
the  moon  describes,  exist  only  in  our  heads.  We  only 
imagine  them,  but  this  does  not  prevent  such  construc- 
tions from  having  great  scientific  value. 

The  estimation  of  every  juridical  construction  ought 
to  depend  exclusively  on  the  following  idea:  Is  it,  or  is 
it  not,  a  useful  form  for  the  reproduction  of  legal  phe- 
nomena and  for  the  determination  of  their  mutual  rela- 
tions? The  utility  of  a  process  of  juridical  construction 
is  proved  when  one  can  put  this  process  into  practice. 
Worked  out  by  the  civilians,  properly  so  called,  this 
process  becomes  from  day  to  day  further  applied.  It  is 
absolutely  useful  for  the  reproduction  of  juridical  phe- 
nomena, however  different  they  may  be. 

That  this  juridical  construction  may  answer  the  pur- 
pose for  which  it  was  devised  it  must  fulfill  certain 
general  conditions,  which  Ihering  called  laws  of  juridical 
construction.  The  first  is  that  it  be  complete.  It  must 


POSITIVE  LAW  501 

include  all  possible  cases.  They  must  all  find  a  place 
in  its  different  pigeon-holes.  The  second  condition  is 
that  it  be  logical.  The  whole  construction  must  be 
consistent  with  itself.  It  must  not  be  out  of  harmony 
with  juridical  institutions  of  the  more  general  kind. 
It  ought  to  conform  to  them.  It  ought,  farther,  to  be 
such  that  the  solution  of  all  questions,  having  regard 
to  the  relation  indicated,  should  be  derivable  from  it 
as  a  logical  and  necessary  consequence.  Finally,  it 
ought  to  be  simple  and  natural.  Anything  otherwise 
would  not  facilitate  the  conception  of  the  law,  but  have 
quite  the  reverse  effect. 

When  the  construction  of  different  institutions  of  law 
is  accomplished,  it  remains  to  classify  them.  Con- 
formably to  the  distinction  in  the  logical  correlation  of 
notions,  which  subordinates,  or  sets  them  into  opposition, 
two  forms  of  classification  are  possible,  by  system  and 
by  rank.  The  first  is  the  work  of  a  comparison  between 
different  notions  which  are  subordinated,  the  one  to  the 
other.  It  seeks  not  merely  to  divide  into  several  groups 
the  classified  phenomena,  but  also  to 'make  of  each  of  these 
groups  a  whole  and  bind  them  together  so  that  they 
shall  be  presented  as  all  one  branch  of  the  fundamental 
notion,  and  thus  make  it  a  systematic  classification,  which 
can  be  represented  under  the  form  of  a  trunk  with  branches 
and  subdivisions,  all  co-ordinated  with  each  other. 

Jurists  apply  almost  exclusively  the  classification  by 
system.  It  is,  however,  only  a  special  kind  of  classifica- 
tion. If  we  compare  these  notions  of  law  according  to 
the  degree  of  their  mutual  proximity  we  shall  have  a 
system  based  upon  position  and  such  a  comparison  does 
not  create  ramification.  We  shall  have,  then,  a  series 
of  several  notions  presenting  themselves,  as  might  be 
said,  like  links  in  an  indefinite  chain.  Such  a  classifica- 
tion has  special  applicability  to  the  phenomena  of  the 
juridic  life  passing  successively  across  the  ages. 


INDEX 


ACTS, 

not  sole  object  of  rights,  216. 

only  external  ones  restricted,  219. 

latter  include  threats  and  published  matter,  Id. 

specially  restricted  acts  require  special  capacity,  228. 

ACQUISITION  and  realization  of  rights  to  be  distinguished,  482. 

ADICKES, 

his  finding  custom  obligatory  simply  from  length  of  use  wrong, 

414. 
not  mere  practising  it,  but  recognizing  custom  as  obligatory 

makes  it  law,  415. 

AHRENS, 

represents  organic  school  in  his  encyclopedia,  17. 
harmonious  development  leading  idea  of  his  legal  system,  28. 
his  distinction  of  natural  and  formal  goods  accepted  by  posi- 

tivists,  61. 

his  definition  of  law,  81. 
aids  overthrow  of  formal  school,  107. 
his  distinction  of  public  and  private  law  insufficient,  235. 
thinks  intra  state  groups  formed  to  satisfy  economic  needs,  333. 

AMERICA,  History  of,  contradicts  Spencer's  theory  of  state  or- 
ganism, 281. 

ANALOGY,  distinct  from  interpretation,  492. 
ANALYSIS  in  jurisprudence  is  scientific  generalizing,  495. 

ANIMALS,  secured  in  enjoyment  of  things  only  through  human 
persons,  202. 

ARISTOCRACY  and  democracy,  Aristotle's  comment  on,  364. 

ARISTOTLE, 

has  no  conception  of  law  of  science,  6. 
has  no  modern  conception  of  organic  life,  270. 
indicates  defects  of  classification  of  governments  into  mon- 
archies, aristocracies  and  democracies,  364. 
classes  them  into  regular  and  irregular,  366. 

ARMY  most  important  organ  of  state's  executive,  360. 
AUSTIN,  exemplifies  English  theory  of  law  as  generalized  facts,  32. 

503 


504  INDEX 

AUTHORITY, 

distinguished  from  will,  349. 

states,  conditioned  upon  subject's  feeling  of  dependence,  351. 
state's  agents  get  their  authority  from  this  while  feeling  it,  352. 
when  due  to  personal  it  still  comes  from  feeling  of  dependence, 

354. 
in  most  states  exercised  through  a  system  of  successive  appeals, 

359. 

BAHR  divides  law  into  private  and  that  of  societies,  246. 
BAIN'S  explanation  of  conscious  will,  158. 

BEKKER,  retracts  opinion  that  animals  sustain  legal  relations,  201. 
BENTHAM  makes  improvement  essence  of  law,  397. 
BERGBOHM  denies  any  existence  to  non-acting  law,  91. 

BERNARD,  CLAUDE, 

shows  modern  conception  of  organic  life  was  not  held  in  ancient 

and  mediaeval  times,  270. 
his  idea  of  an  organism's  own  liquid  internal  environment,  290. 

BESELER,  maintains  actual  existence  of  moral  persons,  203. 

BICHAT,  develops  vital  theory  and  new  conception  of  organic  life, 
271. 

BLUNTSCHLI, 

teaches  all  branches  of  law,  15. 

society  presents  only  an  analogy  to  an  organism,  274. 

BODIN, 

his  notions  of  state  and  sovereignty,  339. 
latter  he  thinks  is  unlimited  authority,  Id. 
Hobbes  accepts  and  extends  this  conception,  340. 
held  till  our  time  it  is  now  abandoned  under  leadership  of 
Laband,  Jellinek,  and  especially  Preuss,  340. 

BOHEMIAN,  greatly  resembles  the  Russian  language,  III. 
BRUNS,  defends  Ulpian's  definition  of  public  law,  23. 

CAPACITY,  special,  required  for  specially  conditioned  acts,  228. 

CHURCH, 

a  voluntary  group  within  the  state,  329. 

political  in  character,  332. 

no  economic  part,  Id. 

resembles,  however,  economic  associations,  333. 

CIVIL  LAW,  not  realizable  by  forcible  constraint  alone,  100. 

CODE  OF  RUSSIAN  LAW, 
first  edition  of,  453,  ff. 
Later  ones,  458. 

its  unity  badly  maintained,  461. 
its  importance  and  force,  468,  ff. 


INDEX  505 

CODE  OF  RUSSIAN  LAW '  —  continued. 

not  originally  intended  as  new  law,  468. 
later  sometimes  held  to  abrogate  prior  enactments,  Id. 
Zitovich  and  Tagantzev  wrong  in  saying  this  is  unavoidable 
469,  ff. 

COMMON  OPINION  of  the  learned  not  ascertainable  nor  a  true 
source  of  law,  423. 

COMMUNES  controllable  if  central  power  appoints  officers,  342. 
COMMUNISM  not  a  denial  of  law,  252. 

COMTE,  rejects  metaphysics,  4,  and  applies  Bichat's  vital  theory  to 
society,  273. 

CONSTITUTIONAL  MONARCHY,  division  of  powers  in,  shows 
absence  of  general  will  in  a  nation  having  it,  347. 

CONSTRAINT, 

admittedly  characteristic  of  law,  94. 

made  by  Thorn  asius,  Kant  and  Fichte  the  distinguishing  one 

of  law  as  opposed  to  morals,  Id. 
inadmissible  as  sole  support  of  law,  97. 
refutation  of  arguments  to  show  that  it  is,  98,  ff. 
situation  of  public  law  shows  it  is  not  such  sole  support,  99. 
the  state  the  great  dispenser  of,  341. 

CONTRACT, 

its  form  once  criterion  of  its  existence,  now  intention  of  parties 

is  so,  59. 

theory  that  it  is  the  basis  of  obligation  to  conform  to  law,  141. 
this  latter  a  question  begging  doctrine,  142. 
though  held  by  both  Hobbes  and  Grotius,  427. 
no  more  explains  law  than  it  does  language,  142. 
compared  with  judgments  and  decrees,  228. 
largely  supplemented  in  practice  by  legal  rules,  180. 

CORRELATION  OF  LAWS, 

of  different  times  and  places  often  necessary,  477. 
is  difficult  in  practice  though  simple  in  principle,  479. 

COURTS, 

their  action  creative  of  law,  420,  ff. 
their  duty  to  follow  the  law  does  not  prevent  this,  422. 
must  develop  logical  unity  of  their  legal  system  and  so  add  to 
the  law,  420,  /. 

CRIMINAL  LAW  indeterminate  in  leaving  much  to  magistrate,  180. 

CRITICISM, 

in  jurisprudence  is  determining  what  is  and  is  not  positive  law, 

472. 

differs  from  mere  historical  criticism,  Id. 
must  determine  not  only  existence  of  practice,  but  whether  or 

not  it  is  obligatory,  473. 
uses  direct  observation,  testimony  of  the  learned  and  published 

collections  and  former  decisions,  Id. 
must  test  the  accuracy  of  these  last  three,  474,  ff. 


506  INDEX 

CRYSTALS,  the  axis  by  which  they  are  classified  a  wholly  ideal 
conception  as  much  so  as  are  legal  rights,  499,  ff. 

CUSTOM, 

discussed,  410,  ff. 

is  primitive  form  of  positive  law,  410. 

first  so  recognized  by  legal  science  in  XIX  century,  Id. 

generally  recognized  as  source  of  law  and  rejection  of  leads  to 
arbitrary  fictions  as  to  state  authorization,  411. 

historical  school,  especially  Puchta,  compels  recognition  of  this, 
412. 

his  Gewohnheitsrecht  best  account  of  it,  413. 

not  observance  of  practice  but  recognition  of  its  obligatory 
character  makes  it  law,  415. 

mechanical  theory  therefore  insufficient,  416. 

Puchta's  spiritualistic  one  of  a  public  consciousness  of  a  rule, 
416,  ff. 

customary  law  is  simply  a  practice  plus  a  recognition  of  obliga- 
tions, 417. 

various  tests  for  this  obligatory  character,  418. 

decisions  or  legislation  unable  to  wholly  prevent  derogatory 
effect  on  themselves  of  custom,  Id. 

DAMAGES,  oldest  form  of,  protection  of  interests  by  law,  189. 
DARWIN,  a  specialist  who  generalized,  15. 

DEBTOR'S  location  not  creditor's  usually  furnishes  law  of  the 
transaction,  484. 

DEFINITION  OF  LAW, 

none  universally  recognized,  78. 

Korkunov's  is  "social  norms  for  delimitation  of  interests,"  Id. 

assumptions  of  this  definition,  Id. 

not  accepted  by  every  one,  79. 

formal  school  defines  law  as  the  delimitation  of  wills,  utili- 
tarians as  the  protection  of  interests,  80,  ff. 

Defined  as  result  of  state  action,  86. 

as  social  norms  and  opposed  to  morality,  which  is  individual 
norms,  92. 

Cartesian  dualism  basis  of  Thomasian  distinction  between  law 
and  morals,  94. 

DEPENDENCE, 

on  others,    physical,    economical    and    moral,    explains    legal 

authority,  193,^". 
changed  by  law  from  merely  social  to  legal  dependence,  195. 

DESCARTES  and  his  dualism,  94,  270. 

DEVELOPMENT  OF  LAW, 

1st,  old  natural  law  theory  that  it  is  arbitrary,  162. 
2d,  historical  school's  theory  of  a  natural  development.  Id. 
3d,  Ihering's  conception  that  it  results  from  struggle  of  interests, 
164. 

DEVELOPMENT  OF  NATIONS, 
three  legal  epochs,  360,  ff. 


INDEX  507 

DUALISM  OF  LAW,  165. 

DUTY, 

is  idea  of  prime  importance  in  law,  195. 

moral  is  absolute  and  may  be  self -regarding  but  legal  duty  is 

relative  and  to  some  other  person,  200. 
Dernburg's  conception  of  legal  duty  to  things  and  animals 

wrong,  203. 
of  court  to  follow  law  does  not  prevent  its  adding  to  the  law,  422. 

EMPEROR, 

Russian  has  sole  legislative  initiative,  443. 
must  distinguish  legislative  from  other  acts,  440. 
since  all  his  acts  are  not  laws,  442. 

need  not  sign  complementary  laws  and  nearly  all  can  be  brought 
under  this  class,  443. 

ENCYCLOPEDIC, 

method  insufficient,  2,  ff. 

is  one  mainly  used  in  Russia,  with  philosophy  is  used  in  Ger- 
many, while  latter  is  used  alone  in  France  and  England,  7. 

legal  encyclopedia  begins  in  1543  with  Lagus'  treatise,  10. 

Durantis'  Speculum  Judiciale  of  1275  not  really  example  of,  10. 

first  book  of  law  so  entitled,  Hunnius'  of  1638,  Philippus'  two 
years  later,  11. 

Hegel's  and  Schelling's  use  of  it,  13. 

an  attempt  at  independent  science  of  science,  16. 

Ahrens',  Warnkonig's  and  De  Walter's,  best  of  more  recent 
German  legal  encyclopedias,  17. 

mere  alphabetic  collections  of  articles  by  various  writers  not 
really  applications  of  this  method,  18. 

such  collections  show  despair  of  a  really  scientific  one,  19. 

Russian  works  in  this  kind  imitations  of  German  ones,  21. 

distinction  of  this  method  from  general  philosophy  of  law  a 
mistake,  34,  /. 

Muller's  service  in  showing  this,  36. 

ENGLAND, 

her  political  and  legal  system  transplantable,  296. 

the  especial  home  of  modern  psychology,  300. 

assigns  corresponding  executive  to  each  deliberative  organ, 

differing  in  this  from  rest  of  Europe,  360. 
like  Russia  rejects  Roman  law  as  a  whole  but  largely  influenced 

by  it,  400. 


PACTS, 

legal  ones  are  conditions  controlling  appearance  and  disappear- 
ance of  rights,  224. 

may  be  external  or  in  the  will  or  mind  of  a  person,  224. 

the  combinations  of  facts  necessary  to  the  applying  of  legal 
rules  are  "basis  of  fact"  (Thatbestand),  Id. 

are  subjective  or  objective,  225. 

four  categories  of,  226. 


508  INDEX 

FAMILY,  long  regarded  as  being  only  real  social  group  besides  the 

state,  228,  ff. 

regarded  by  Hegel  as  partly  disrupted  to  form  state,  330. 
family  relations  later  than  government  functions  in  coming 

under  legislation,  425. 

FATALISM, 

and  freedom  of  the  will,  303,  ff. 

basal  assumption  is  that  events  are  not  interconditioned  but 

depend  upon  some  external  force,  305. 
so  denies  causation  in  acts  of  will,  306. 

involves  false  view  of  law  of  science  as  being  a  cause  of  phenom- 
ena instead  of  an  observed  uniformity,  306. 
position  that  acts  of  will  are  caused  contradicts  fatalism,  307. 

FICHTE, 

accents  distinction  of  law  and  morals  begun  by  Thomasius, 

57,  94. 

importance  of  this  in  struggle  against  state  oppression,  Id. 
develops  formal  conception  of  law,  104. 

FLEHERE,  BROCHER  DE  LA,  his  definition  of  law,  92. 

FORM, 

once  criterion  for  existence  of  contract,  now  intention  is,  59. 
may  be  required  merely  for  proof  or  may  be  necessary  to  validity 

Examples,  Id. 

of  human  grouping  may  be  voluntary  or  involuntary,  328. 

one  based  on  expectation  of  future,  other  on  origin  and  the  past, 

329. 
of  objective  law  of  highest  importance  as  furnishing  test  of  its 

obligatoriness,  402. 
of  law  very  diverse,  444,  ff. 
tribunal  follows  own  through  administering  foreign  law,  83. 

FORMAL, 

conception  of  law  not  present  author's,  80,  104. 

characterized  by  individualism  and  a  mechanical  conception  of 

society,  104. 

highest  development  of  it  by  Thomasius,  Kant  and  Fichte,  Id. 
its  vogue  due  to  reaction  against  governmental  authority,  105. 
still  a  current  theory,  106. 
its  foundation  shown  to  be  bad  by  organic  school  of  Krause, 

Ahrens  and  Roder,  107. 

FOUILLEE,  MENTIONED  III. 

his  view  that  society,  organic  at  first  becomes  voluntary,  266. 
is  open  to  objection  that  organism  and  contract  are  mutually  ex- 
clusive, 267. 
his  notion  of  a  will  partly  free  also  unites  incompatibles,  307. 


INDEX  509 

GAMES,  a  good  example  of  creative  development  like  law,  146. 

GENERALIZING, 

in  science,  adequately  treated  only  by  recent  logicians,  495,  ff. 
it  is  summarizing  rather  than  copying  and  involves  constructive 

processes,  498. 
instances,  conception  of  moon's  orbit  and  of  axes  of  crystals, 

GERMAN, 

legal  instruction  based  on  Roman  law  alone,  38. 

political  situation  brings  forth  Thibaut's  and  Savigny's  writings 

on  codification,  147. 
Hatred  of  French  domination  largely  inspired  them,  148. 

GIERKE, 

insists  on  reality  of  moral  persons,  203. 

divides  law  into  private  and  that  of  societies,  246. 

GOTTINGEN,  legislative  attempt  to  rename  streets  of,  fails,  145. 

GOVERNMENT, 

Montesquieu's  three  powers  of,  are  only  successive  growths  of 

functions,  a  process  still  going  on,  384,  ff. 
its  authority  not  merely  will  of  governing  bodies,  345. 
contract  theory  of  its  powers  not  generally  held  in  XIX  century, 

but  it  is  personality  only  by  fiction,  347. 
its  authority  conditioned  upon  force  and  the  subjects'  feeling 

of  dependence,  351,  ff. 
its  organs,  355,  ff. 
classified  as  monarchy,  aristocracy  or  democracy  by  Herodotus  t 

365. 

Aristotle  already  found  fault  with  indefiniteness  of  this,  Id. 
Plato's  classification  according  to  leading  virtues,  365. 
most  useful  distinction  is  into  monarchies  and  republics,  366. 
former  has  an  irresponsible  monarch,  in  latter  all  are  responsible, 

367. 

importance  and  results  of  this  distinction,  368,  ff. 
practice  of,  first  subject  of  legislation,  425. 

GREEKS, 

resorted  to  philosophic  analysis  and  deduction  to  aid  their  ob- 
servations, 4. 
laid  germ  of  natural  law  theory,  118. 

GROTIUS, 

develops  natural  law  theory,  24,  ff. 

says  God  cannot  change  natural  law,  131. 

held  that  the  law  gets  its  obligation  from  contract,  427. 

GROUPS, 

social,  are  voluntary  or  involuntary,  328. 
men  are  members  of  many  different  ones  at  same  time,  329. 
voluntary  groups  based  on  future  expectations,  involuntary 
ones  on  origin,  or  other  past  considerations,  328. 


510  INDEX 

HARTMAN,  laws  of  science  not  causes  of  phenomena,  67. 
HEEREN,  divides  governments  into  despotisms  and  republics,  366. 
HEPFTER,  takes  civil  and  criminal  law  both  for  his  province,  15. 

HEGEL, 

and  his  followers  derive  law  from  liberty,  28. 

his  distinction  between  law  and  morals,  61. 

brings  back  natural  law  as  basis  of  historical  development,  120. 

his  apparent  consistency  due  to  no  recognition  of  progressive 

creative  development  but  only  of  organic  one,  121. 
makes  natural  law  an  imperishable  ideal  seeking  to  manifest 

itself  in  positive  law,  132. 
opposes  state  to  family  as  a  result  of  latter's  partial  disruption, 

330. 

his  definition  of  the  state,  337. 
seeks  to  correct  Montesquieu's  doctrine  of  separation  of  powers, 

380. 

HERB  ART,  derives  law  from  justice  (remuneration),  28. 

HERDER,  with  Vico  and  Montesquieu  brings  historical  theory 
against  natural  law,  118. 

HERODOTUS,   classifies  governments  into  monarchies,   aristoc- 
racies and  republics,  364. 

HISTORICAL  school  prevails  over  natural  law  theorists,  27,  118. 

HOBBES, 

definition  of  law,  81. 

says  natural  law  is  learned  by  experience,  131. 

held  to  automatic  conception  of  animal  life  and  mechanical 

theory  of  society,  270. 
held  that  obligation  of  law  is  derived  from  contract,  427. 

HUGO,  GUSTAV, 

founds  school  of  believers  in  historical  origin  of  law,  27. 

natural  law  theory  gives  way  before,  118. 

compares  law  to  language  and  to  rules  of  games,  145,  ff. 

HUME,  follows  Hobbes  in  his  natural  law  theory,  131. 

HYPOTHESIS,  and  disposition,  both  essential  parts  of  completely 
expressed  law,  176. 

IDEALS, 

their  influence  and  effect,  293,  ff. 

may  be  formed  by  study  of  other  peoples  and  their  history,  296. 

IHERING,  R.  VON, 

refuses  to  recognize  law  without  forcible  constraint  behind  it,  96. 
attacks  Kant's  formal  conception  of  law  as  mere  rules  for  pre- 
serving liberty,  107. 
social  results  of  his  success,  108. 


INDEX  511 

IHERING,  R.  VON  — continued. 

objections  to  his  conception  of  law  as  merely  force  limiting  in- 
dividual wills,  109,  ff. 

theory  of  his  Kampf  urn's  Recht,  164,  ff. 

his  views  as  to  real  existence  of  moral  persons,  204. 

incidental  advantages  from  legal  situations  without  right  to 
compel  continuance  he  calls  reflex  action  of  law,  211. 

says  legal  limitations  on  state's  power  are  self -limitation,  374. 

urges  scientific  study  of  law,  494. 

and  of  legal  relations  rather  than  rules,  Id. 

fails  to  see  that  legal  generalization  is  true  scientific  generalizing, 
495. 

ILLEGAL  SITUATION  distinguished  from  violation  of  right,  230. 
INCAPACITY,  legal,  four  categories  of,  and  examples,  205. 

INDIVIDUAL, 

his  relations  to  society,  316,  ff. 

recognition  of,  does  not  require  assertion  of  will  as  free  from 

causation,  317. 

under  teleological  conceptions  of  universe  a  mere  means,  318. 
under  causal  conception  not  so  subordinated,  Id. 
each  person  makes  his  own  universe,  319. 
has  only  a  relative  independence  and  rightly  placed  only  in 

psychic  conception  of  society,  320,  ff. 
his  conceptions  not  entirely  his  own,  but  he  is  never  wholly  fused 

with  society,  321. 

INDIVIDUALISM, 

Kant's  and  Fichte's  theories  of,  accentuate  the  distinction  be- 
tween law  and  morals,  57. 
was  useful  in  resisting  state  oppression,  58,  ff. 
successfully  assailed  by  organic  school,  61. 

INSTITUTIONS, 

legal  ones  are  identical  legal  relations  considered  in  a  body  apart 

from  concrete  facts  to  which  they  apply,  198. 
they  moderate  political  action,  387. 
they  must  be  classified  in  a  systematic  order,  501. 

INTENTION  controls  contract  now  as  form  once  did,  59. 

INTERESTS, 

law  is  the  social  delimitation  of,  52. 

diversity  of  as  dealt  with  by  law,  183,  ff. 

nevertheless  subject  to  many  identical  conditions,  Id. 

in  conflicts  of,  modern  law  prefers  solution  in  accordance  with 

liberty,  186. 
seldom  wholly  individual,  59. 

INTERPRETATION, 
generally,  486,  ff. 
deals  with  written  texts,  487. 

deals  with  logic  and  grammar  as  in  history  and  theology,  Id. 
changes  of  meaning  and  conception  must  be  guarded  against,  Id. 


512  INDEX 

INTERPRETATION  —  continued. 

logic  and  grammar  discarded  if  evidently  misleading  guides,  488. 
comparison  useful  with  other  passages  as  they  must  form  a 

system,  489. 
later  documents  supersede  former  ones  in  law  if  both  have 

authority,  489. 
results  of  this,  490. 
interpretation  distinct  from  analogical  extension,  492. 

JELLINEK, 

definition  of  law  as  minimum  ethics,  61. 

his  distinction  of  public  and  private  rights  not  valid,  247,  ff. 

he  rejects  Bodin's  conception  of  sovereignty,  340. 

JUDICIAL  USAGE, 
a  source  of  law,  420. 

how  it  differs  in  that  respect  from  custom  and  legislation,  is  not 
a  special  form  of  custom,  421. 

JURISPRUDENCE,  its  processes  the  ordinary  ones  of  science,  495. 
JURIS  VINCULUM,  meaning,  195. 

JUST  AND  UNJUST, 

relative  and  not  absolute  terms,  74. 

natural  law  asserts  absoluteness  of  the  distinction,  76. 

importance  of  notion  of  their  relativity  for  scientific  reasons, 

77,  ff. 
Lasson's  view  of  absoluteness  of  distinction,  88. 

KANT, 

follows  Thomasius  in  sharp  distinction  of  law  from  morals,  57, 
94. 

his  definition  of  law  as  norms  of  liberty  not  true  of  any  actual 
system,  82. 

differs  from  historical  school's  proposition  that  law  consists  of 
rules  limiting  liberty  but  not  sound  in  latter  view,  83. 

he  develops  formal  theory,  104. 

he  adopts  Rousseau's  conclusion  that  true  legislation  is  expres- 
sion of  public  will,  427. 

reason  his  ground  for  obedience  to  law,  397. 

KAPOUSTINE,  defines  law,  81. 

KAREIEV  holds  law  to  be  largely  voluntary  and  contractual  in 
labor  development,  266,  ff. 

KASHINf  ZA,  his  definition  of  law,  92. 

KAVELINE'S  basis  of  distinction  between  public  and  private  law 
not  admissible,  236. 

KORKUNOV,  remarks  as  to  his  personal  career.     Preface  I-V. 

KRAUSE, 

and  his  followers  derive  law  from  idea  of  harmonious  develop- 
ment, 28,  81. 

he  helps  overthrow  of  Kant's  formal  theory,  107. 
accepts  organic  theory  of  society,  274. 


INDEX  513 

LABAND,  rejects  Bodin's  sovereignty  conception,  340. 
LANGUAGE,  formed,  like  law,  by  creative  development,  144. 

LARNAUDE,  Prof,  of  University  of  Paris,  analyzes  and  praises 
Korkunov's  work,  Pref.  I-VI. 

LASSON,  thinks  justice  absolute  equality  and  law  product  of  state's 
activity,  88. 

LAW, 

derived  as  a  dialectic  result  from  liberty  by  Hegel  and  his 

followers,  28. 
sharp  distinction  of,  from  morals  based  in  Cartesian  philosophy, 

94. 

this  rejected  by  modern  science,  95. 
is  the  common  criterion  of  interests  and  of  their  value  which 

society  adopts,  49,  ff. 
is  delimitation  of  interests,  52. 
distinguished  from  morals  by  fact  that  its  obligations  may  be 

released  and  it  uses  forcible  constraint,  53. 
may  extend  realization  of  interests  by  forbidding  interference 

or  requiring  assistance,  209. 
organic  school  combines  law  and  morals,  58. 
is  a  socially  accepted  and  enforced  part  of  morality,  62,  ff. 
scientific  "law"  not  violable  like  legal  or  moral  norm,  57. 
Lewes'  caution  against  regarding  this  "law  "  as  cause  of  phenom- 
ena, 66. 

juridical  law  is  a  rule  consciously  established,  67. 
scientific  law  exists  whether  known  or  not,  69. 
also  unvarying,  while  juridical  ones  vary  with  time  and  place,  71. 
law  therefore  relative,  72. 
quite  different  if  there  is  an  absolute  right  and  wrong  as  the  old 

literature  would  indicate,  73. 

legal  phenomena  are  as  relative  as  physical  ones,  74. 
no  universally  accepted  definition,  79. 
law  is  too  heterogeneous  to  admit  a  definition  based  on  matter 

of  its  rules,  80. 
hence  the  various  definitions  given,  Leibnitz's,  Ahrens',  Tren- 

delenburg's,     Kapoustine's,    Soloviov's,     Hobbes',     Kant's, 

Krause's,  Friedlander's,  Bauman's  and  Pachman's,  81. 
definition  as  norms  of  liberty  owes  its  success  to  ambiguity,  82. 
law  and  legislation  confused  in  practice  and  theory,  87. 
most  strongly  by  Schein,  90. 
definition  of  law  as  social  and  of  morality  as  individual  norms 

defective,  92. 

source  of  law  too  much  controverted  to  furnish  definition,  93. 
not  arbitrary  but  largely  inevitable  despite  its  variations,  117. 
natural  law  theory  starting  in  Greece  developed  strongly  by 

the  Romans,  extended  by  modern  theorists,  yields  to  historical 

conceptions,  24,  118. 

Grotius'  ideas  brought  to  Russia  in  1629  by  Peter  the  Great,  28. 
Locke  with  Hobbes  and  Hume  as  to  Natural  Law,  131. 


514  INDEX 

LAW  —  continued. 

positive  law  connected  in  common  thought  with  the  state's 
authority  or  with  contract,  139. 

no  more  explainable  by  agreement  or  enactment  alone  than  is 
language,  142,  ff. 

grows  up  like  language,  144. 

development  of,  3;  categories  of,  162,  ff. 

consists  of  rules  and  relations  which  are  its  objective  and  sub- 
jective sides,  165. 

the  relations  develop  first  and  are  rights  and  obligations,  166. 

consists  of  commands  but  not  necessarily  emanating  from  any 
individual  will,  169. 

categories  of  commands,  170. 

object  of,  is  to  regulate  struggle  for  control  of  natural  forces,  183. 

public  and  private  law,  232,  ff. 

Roman  division  by  matter  a  failure  both  in  ancient  and  modern 
times,  237,  ff. 

various  divisions  examined,  242,  ff. 

real  basis  is  form  of  right,  ownership  (dominion)  or  mere  right 
to  use  with  others,  the  one  regulated  by  private,  other  by 
public  law,  251,  ff. 

is  public  so  far  as  it  establishes  communal  enjoyment,  253. 

co-ordinating  principle  of  society,  323. 

under  a  mechanical  theory  of  society,  only  a  forcible  delimita- 
tion of  individual  wills,  324. 

under  psychic  theory  and  conception  of  right  is  an  active  factor 
of  social  development,  325. 

a  necessary  social  order,  and  fixes  conditions  of  progress,  326. 

positive,  grows  by  juridical  use  of  custom,  393. 

derived  from  subjective  conception  of  right  but  cannot  wholly 
replace  latter,  394. 

checks  free  development  but  preserves  gains  from  generation 
to  generation,  395. 

more  general  than  any  subjective  idea  of  right,  it  is  very  varied, 
396. 

its  obligatory  quality  necessary  to  society,  397. 

this  held  by  some  to  come  from  contract,  427. 

each  legal  system  relatively  independent  and  established  by  men 
for  themselves,  398. 

its  sources,  402,  ff. 

in  jurisprudence  this  means  the  test  for  determining  the  obliga- 
tory character  of  a  rule  which  makes  it  "legal,"  403. 

they  consist  of  legislation,  customs  and  judicial  usage,  405. 

LEGES, 

plus  quam  perfects,  189. 
minus  quam  perfects,  190. 
imperfects,  191. 

LEGISLATION, 

does  not  always  become  law,  145. 
one  of  the  three  sources  of  law,  393,  404. 
supposed  to  be  the  only  one  till  XIX  century,  410. 
not  arbitrary,  404. 


INDEX  515 

LEGISLATION  —  continued. 

presumed  to  be  known  but  not  always  so  even  to  the  judges,  407. 

not  to  be  defined  as  well  of  state  or  of  its  organs,  426. 

a  legal  rule  established  by  government  organs  not  necessarily 

by  special  procedure,  Id. 
its  obligatory  quality  that  makes  it  law  variously  explained. 

427,  ff. 

contract,  Grotius,  Hobbes,  Locke,  Id. 
general  will  Rousseau  and  Kant,  Id. 
neither  agree  with  facts,  428. 
is  set  up  by  political  organs  with  force  to  compel  obedience  and 

recognized  as  legitimate  by  subjects,  Id. 
various  machinery  in  use,  429,  ff. 
initiative  in  legislation  variously  placed,  430. 
with  Emperor  in  Russia,  443. 

LILLIENFELD,  with  Spencer  strongest  champion  of  organic  theory 
of  society,  274. 

LOGIC, 

did  not  formerly  explain  generalization  so  as  to  include  the 
legal  processes  of  formulating  rights  and  rules  adjusting  them, 
497. 

modern  logic  in  Sigwart,  Lotze,  and  Wundt  does,  Id. 

MAN,  not  an  isolated  being  but  always  in  society,  49. 

MECHANICAL  AGGREGATE,   has  no  history  nor  power  of 
adaptation,  287. 

MECHANICAL  CONCEPTIONS  OP  SOCIETY,  260,  ff. 
now  abandoned,  263. 
its  great  historic  part,  264,  ff. 
latest  modification  of  it  that  society  as  it  advances  becomes 

controlled  by  will  and  intelligence,  265. 
presented  especially  by  Fouillee  and  Kareiev,  266. 
the  mechanical  conception  gives  way  to  the  organic,  273. 
neither  properly  locates  the  individual,  320. 

MERKEL,  leads  in  Germany  away  from  a  priori  construction 
towards  a  theory  of  the  actually  observed  facts,  32. 

MILL,  his  explanation  of  realism,  135. 

MODESTINUS, 

his  four  categories  of  legal  commands,  170. 

shows  Roman  law  not  unchanged  in  modern  life,  237. 

MOHL, 

objects  to  Ahrens'  group  theory,  333. 

defines  the  state,  337. 

classifies  governments  by  their  relations  to  society,  366. 

MONARCHY,  absolute,  must,  like  limited  one,  distinguish  legis- 
lative acts,  441. 


516  INDEX 

MONTESQUIEU, 

one  of  introducers  of  historical  method  in  law,  118. 

his  doctrine  of  three  separate  powers  in  state,  377. 

thought  it  essential  to  liberty,  378,  383. 

thought  wealth  and  rank  should  form  separate  house  and  it 
and  commons  have  mutual  veto,  379. 

his  theory  though  not  true  of  England  accepted,  380. 

some  corrections  suggested  by  Constant  and  Hegel,  381. 

whole  theory  wrong,  383. 

the  separate  powers  are  simply  successive  developments  of  gov- 
ernment functions  and  the  process  still  is  going  on,  384. 

MOON,  its  orbit  a  construction  totally  unlike  reality,  as  ideal  as 
rights,  499. 

MORALITY, 

not  yet  fairly  separated  from  law  in  XVII  century.     Distinction 

first  emphasized  by  Thomasius,  25,  ff. 
every  system  of,  proposes  a  criterion  of  competing  interests  of 

the  individual,  48. 

this  its  main  function  and  would  suffice  for  isolated  man,  Id. 
moral  norms  evolve  interests,  for  the  individual  legal  ones  for 

society,  49. 
moral  norms  evolve  interests,  legal  ones  delimit  their  realization, 

52. 

moral  norms  not  releasable  and  admit  no  constraint,  53. 
fixed  evaluation  favors  oppression,  separation  of  it  from  law 

favors  liberty,  58. 

moral  evaluation  and  regard  for  motives  necessary  in  law,  59. 
realization  of  morality  and  of  law,  60. 
Hegel's  distinction  of  morals  and  law,  61. 
moral  persons  are  like  algebraic  parentheses,  204. 
rights  of,  213. 

MOUROMTZEV, 

attempts  correction  of  Ihering's  utilitarian  conception  without 

success,  113,  jf. 

wrong  in  recognizing  legal  relations  to  things,  200. 
supports  inaccurately  division  of  public  from  private  law  by 

means  of  consequences  of  violation,  249. 

MULLER,  develops  general  theory  at  expense  of  encyclopedia  of 
law,  36. 

NATIONS, 

do  not  correspond  to  modern  states,  334. 
three  epochs  in  their  development,  360,  ff. 

NATURAL  LAW, 

its  theory  an  absolute  one,  75. 

failed  because  it  had  no  criterion  for  natural  and  non-natural 
and  equally  natural  laws  conflict,  76,  ff. 


INDEX  517 

NATURAL  LAW  —  continued. 

only  philosophic  theory  for  centuries,  117. 

yields  to  historic  school,  119. 

reappears  because  latter  is  too  narrow,  120. 

Romans  thought  it  united  to  positive  law  to  make  up  their 

system,  124. 

their  natural  law  an  illusion,  126,  ff. 
XVII  century  natural  law  a  philosophic  transcendental  system, 

24. 
school  making  it  ideal  system  not  overthrown  by  appeal  to 

ordinary  facts,  129. 
as  ideal  hypothesis  contradicts  established  facts,  therefore  false, 

310. 

Its  important  practical  r61e,  134. 
idea  of  it  explained  by  indirect  suggestion,  134,  ff. 

NECESSITY,  as  well  as  choice,  creates  law.     Regularity  of  develop- 
ment shows  this,  119. 

NEUNER  supports  Ulpian's  definition  of  public  law,  232. 

NORMS, 

technical,  and  ethical,  their  distinction,  41,  42. 

former  various,  latter  uniform,  43. 

latter  obligatory,  former  optional,  44. 

violations  of  latter  matter  of  public  interest,  45. 

technical  constant,  because  rules  for  use  of  unchanging  forces,  46. 

ethical  relate  to  a  varying  subjective  life,  Id. 

legal  norms  are  ethical  ones,  47. 

are  obligatory  and  imperative  and  in  this  differ  from  laws  of 

science,  65. 
latter  cannot  be  violated,  Id. 

OBJECTS  of  rights,  four  categories  of,  217,  /. 

OBLIGATION, 

basis  of  all  law,  197. 

when  not  present  there  may  be  permission  of  enjoyment  but 

can  be  no  right,  211. 
may  exist  without  corresponding  right,  Id. 

ORGANS  OF  GOVERNMENT, 

deciding  and  merely  co-operating  ones,  356. 
preparative,  consultive  and  executive  ones,  Id. 
same  one  may  have  many  functions,  357. 
unipersonal  and  collegial,  358. 
army  most  important  executive  organ,  360. 

ORIGIN  OF  LAW, 

Hugo's  conception,  143,  ff. 
Savigny's,  153,  ff. 
author's,  157,  ff. 

PACKMAN,  his  definition  of  law,  81. 


518  INDEX 

PERSONAL  QUALITIES,  help  authority,  354. 

PERSONS, 

legal,  Savigny  holds  them  to  be  fictitious,  203. 
Besler,    Gierke,    Dernburg   and  Regelsberger  maintain  their 
reality,  Id. 

PHILOSOPHIC  SYSTEMS, 

all  discredited  by  mutual  contradictions,  4. 

Plato's,  3. 

All  rejected  by  positivism,  4. 

PHILOSOPHY, 

defined  as  the  highest  generalization  of  known  phenomena,  23. 

modern  philosophy  not  derived  from,  nor  tested  by  sensible 
facts,  24. 

of  law  involves  belief  in  separable  a  priori  principles  not  ob- 
tained by  observation  or  induction,  29. 

requires  a  known  absolute  and  for  these  reasons  supplanted  by 
general  theory  based  on  empirical  knowledge,  30. 

PLATO, 

philosophic  system  of,  6. 

holds  no  organic  conception  of  society,  27. 

classifies  governments  by  their  leading  virtues,  365. 

POSITIVE  LAW, 

a  system  of,  elaborated  by  Schelling,  28. 

held  by  Romans  to  unite  with  natural  law  to  form  their  system, 

124. 

XVII  century  theorists  separate  it  wholly  from  natural  law,  128. 
sources  of  it,  393,  ff. 
custom  is  primitive  form  of,  410. 

POSITIVISM,  while  rejecting  metaphysics  admits  necessity  of  gen- 
eralizing empirical  knowledge,  4. 

POWER  OF  STATE, 

limited  by  feeling  of  other  interests,  371. 

limited  in  three  other  ways  as  well  as  by  separation  of  powers, 
389. 

PRESCRIPTION  rests  on  idea  that  unused  right  no  longer  exists, 
227. 

PREUSS  rightly  rejects  Bodin's  conception  of  sovereignty,  340,  ff. 

PRIVATE  LAW, 

exhibits  most  unity,  237. 

relations  of,  come  later  under  legislation  than  public  ones,  425. 
property  private  or  communistic  (public),  253. 
distinguished  from  public  law,  how,  232,  ff. 


INDEX  519 

PSYCHICAL  LIFE, 
its  peculiarity,  290. 
its  importance  in  social  organization,  298,  ff. 

PSYCHOLOGY, 

only  just  escaped  from  intuitionism  and  perceptualism,  298. 
both  incapable  of  furnishing  idea  of  psychic  evolution  to  social 

philosophy,  299. 
modern,  asserts  influence  of  past  generations  on  psychic  life  of 

present,  301. 

PUBLIC  LAW, 

cannot  be  built  up  on  basis  of  individual  claims,  196. 

Ulpian's  definition  of  insufficient,  234. 

non-success  of  Savigny,  Stahl  and  Ahrens  in  correcting  it, 
Id.,ff. 

Wagner,  Kaveline  and  Zitovich  do  no  better,  339,  ff. 

Ihering  suggests  true  distinction  but  does  not  rest  on  it,  334. 

Kant,  Puchta,  Jellinek,  Thon,  Mouromtzev  miss  the  real  dis- 
tinction, 243,  ff. 

rights  to  exclusive  individual  use  of  things  private  and  under 
private  law.  Rights  to  general  common  use,  under  public 
law,  351,  ff. 

PUNCHART,  sought  to  convert  legal  relations  into  legal  depend- 
ence without  practical  result,  197. 

PUNISHMENT  has  three  ends,  231. 

REGELSBERGER, 

wrong  in  recognizing  legal  relations  to  things,  200. 

and  in  maintaining  actual  existence  of  moral  persons,  203. 

REID'S  conception  of  a  will  free  under  equal  motives  a  delusion,  309. 

RELATIONS, 

juridical,  consist  of  rights  and  obligations,  167,  ff. 

as  compared  with  legal  rules  they  form  subjective  side  of  law,  Id. 

Q,re  relations  of  fact  as  well  as  law,  198. 

all  of  which  come  under  same  legal  rule  identical  as  to  law 

however  diverse  as  to  fact,  Id. 
those  of  public  law  not  explainable  as  claims  of  individual  nor 

all  of  those  of  private  law,  197. 
considered  apart  from  facts  are  institutions  and  form  a  whole 

called  the  juridical  order  or  state,  198. 
and  this  though  they  change  ceaselessly,  199. 
harder  to  alter  than  legal  rules,  493. 

RIGHTS, 

a  term  strictly  applicable  only  between  freemen,  112. 

are  "to"  or  "over"  and  not  "with"  a  slave,  113. 

those  imposing  general  obligation  called  "real"  or  rights  over 

things,  211. 
definition  of,  212. 
of  moral  persons,  213. 
always  corresponding  obligations,  167. 
together  they  both  form  the  legal  relation,  168. 
precede  rules,  Id. 


520  INDEX 

RIGHTS  —  continued. 

result  from  turning  ordinary  social  relations  into  legal  ones, 

social  influence  becoming  right,  195. 

must  be  some  object  whose  use  is  body  of  right,  216. 

acts  not  sole  objects  of  rights,  216. 

four  categories  of  objects  of,  217. 

none  over  person  of  another,  only  over  his  services,  or  detached 

parts,  220. 
right  to  service  limited  to  indemnity  for  loss  of  not  to  constrain, 

221. 

depend  for  appearance  or  destruction  on  juridical  facts,  224. 
violated  only  by  human  will,  230. 
an  ideal  construction  worked  out  by  the  civilians,  500. 

RODER,  helps  overthrow  Kant's  formal  conception  of  law,  107. 
ROMAN  EMPIRE  preserved  by  its  past  after  its  vitality  gone,  289. 

ROMAN  JURISTS, 

regarded  law  as  compounded  of  natural  and  positive  provisions, 

124. 

this  an  illusion,  126,  ff. 
constructed  the  system  of  rights  and  obligations,  500. 

ROMAN  LAW, 

preserved  by  social  needs  because  indispensable,  237. 
a  local  law  adopted  by  custom  in  Germany,  399. 
same  true  of  Russian  Baltic  provinces,  400. 
England  and  Russia  exceptions  to  most  European  states  in  not 
adopting  it  bodily  though  much  influenced  by  it,  400. 

ROUSSEAU'S 

natural  law  theory  involves  denial  of  obligation  of  positive  law, 

131. 
refers  legislation  to  general  public  will,  427. 

RULES  in  law  easier  changed  than  relations,  493. 
RUSSIAN  legal  instruction  combines  law  and  politics,  39. 

RUSSIAN  LEGISLATION, 

claims  sole  power  to  make  law  but  in  fact  shares  it  with  custom 

and  judicial  decisions,  435. 
this  legislative  claim  comes  from  time  before  the  separation  of 

the  powers,  435. 

SAVIGNY, 

champions  successfully  historical  view  as  against  natural  law 

theory,  27. 

corrects  Modestinus'  categories  of  legal  commands,  170. 
aids  overthrow  of  natural  law  by  historical  view,  118. 
recognized  outside  of  Germany  as  greatest  XIX  century  jurist, 

146. 

his  views  of  custom  as  law,  409. 
seeks  to  correct  Puchta's  on  same,  413,  ff. 
views  as  to  origin  of  law,  149,  ff. 
opposes  codification,  147. 


INDEX  521 

SCHAFFLE, 

his  definition  of  law,  92. 

accepts  organic  view  of  social  life,  274. 

SCHEIN,  strongest  defender  of  identity  of  law  and  legislation,  89. 
SCHELLING, 

elaborates  system  of  positive  law,  28. 

accepts  organic  view  of  society  to  extent  of  regarding  its  phe- 
nomena as  reciprocally  conditioned,  294. 

definition  of  state,  338. 

SCHUTZE  identifies  general  theory  of  law  with  encyclopedia,  38. 

SCIENCE, 

fragmentary  as  learned  by  observation,  1. 

must  be  generalized,  2,  ff. 

is  generalized  knowledge,  especially  as  to  law,  4. 

specialization  of,  must  not  lose  sight  of  general  principles,  15. 

is  only  a  well-made  language,  144. 

laws  of,  not  causes  but  only  observed  uniformities  in  phenomena, 

66,  ff,  303. 
not  a  source  of  law,  405. 

SEYDEL'S  conception  of  governmental  authority  as  will  of  govern- 
ing persons  wrong,  345,  ff. 

vSOCIAL  CLASSES, 

Mohl's  theory  of  them  as  social  groups,  334. 

they  lend  toward  effacement  with  social  progress,  361. 

SOCIAL  RELATIONS,  when  made  obligatory  by  law  become  legal 
ones,  192. 

SOCIETY, 

largely  involuntary  and  therefore  not  to  be  regulated  by  mere 

prohibiting  voluntary  disturbance  of,  59. 
its  forces  distinguishable  from  and  greater  than  merely  the  sum 

of  individual  powers  embraced  in  it,  223. 
is  medium  of  application  of  law,  259. 
many  explanations  of,  260. 

especially  the  mechanical  and  the  organic  one,  Id. 
both  now  nearly  abandoned,  262. 
is  not  a  work  of  conscious  art,  268. 

organic  conception  of,  came  first  at  end  of  XVIII  century. 
Plato's,  Aristotle's  and  Hobbes'  likening  of  state  to  an  animal 

had  no  such  idea,  270. 
Cartesian  philosophy  applied  by  Spinoza  to  society  had  only 

automatic  and  mechanical  conceptions,  Id. 
Stahl's  spiritistic  conception  still  regarded  the  social  body  as 

a  machine,  271. 

is  subject  to  laws  both  of  organic  and  inorganic  world,  289. 
has  triple  environment,  physical,  ethical,  psychical,  291. 
its  possibilities  of  immortality,  292. 

SOCRATES,  first  promulgator  of  natural  law  theory,  118. 

SOURCES  OF  LAW,  are  only  custom,  judicial  decision  and  legisla- 
ion,  405. 


522  INDEX 

SOVEREIGNTY, 

Bodin's  conception  of,  as  unlimited  state  authority  prevails 

even  to  our  day,  339. 
rightly  rejected  by  Laband,  Jellinek  and  Preuss,  340,  ff. 

SPENCER,  HERBERT, 

best  authorized  representative  of  organic  conceptions  of  society, 

275. 
discussion  of  it,  276,  ff. 

SPINOZA, 

in  his  social  concepts  follows  Descartes,  270. 
accepts  causation  of  acts  of  will,  310. 

STAHL'S, 

spiritistic  theories  still  regard  body  social  and  physical  as  a 

machine,  271. 
says  divine  order  is  essence  of  law,  397. 

STATE, 

not  sole  nor  earliest  but  at  present  chief  source  of  law,  140. 
thought  by  Hegel  to  result  from  partial  disruption  of  family,  330. 
its  government  not  by  general  will  nor  always  by  any  will, 

348,  ff. 

submission  to  it  often  merely  imitative,  353. 
its  agencies  speedily  come  to  act  by  a  rule  which  thus  becomes 

a  law,  355. 

its  authority  limited  by  consciousness  of  other  interests,  371. 
how  this  creates  limits  by  law,  372,  ff. 
Montesquieu's  doctrine  of  separation  of  powers,  377. 
thought  by  him  essential  to  liberty,  378,  /. 
Hegel's  and  Constant's  corrections  of  it  still  insufficient,  380. 
distributions  of  the  same  function  frequent,  386. 
they  are  never  completely  separated  in  any  state,  391. 

STUDY  OF  LAW, 

should  be  rather  of  relations  than  of  rules,  493. 
rules  not  comprehensible  apart  from  the  system  of  legal  rela- 
tions, their  study  therefore  indispensable,  494. 
processes  of,  common  to  that  of  all  science,  495. 

SUBJECTIVE  RIGHT, 

developed  by  western  Europeans,  not  by  Romans,  195. 
subjectivism  of  modern  mind  and  Christianity's  development 
of  individual  will  accounts  for  this,  196. 

SYSTEM, 

more  essential  in  state  than  in  individual  action,  441. 

laws  of  a  given  country  at  any  given  time  must  form  a,  489. 

TAGANTZEV  errs  in  asserting  Russian  code  abrogates  pre-existing 
law,  469,  ff. 

TELEOLOGICAL  theory  of  universe  reduces  individual  to  a  means, 
318. 


INDEX  523 

THEORY, 

general,  distinguished,  1st  from  encyclopedia,  2d  from  phi- 
losophy of  law,  31. 

is  merely  generalization  of  observed  facts  and  specially  English 
as  exemplified  by  Austin,  32. 

THIBAUT, 

advocates  code  for  Germany,  152. 

objects  to  fragmentary  legislation  and  use  of  Roman  law  and 
is  opposed  by  Savigny,  153. 

THON,  classifies  law  by  consequences  of  its  violation,  248. 

TIME, 

of  law's  taking  effect  not  of  sanctioning  it,  important  to  jurist, 

445,  ff. 
of  facts  and  not  of  trial  or  judgment  gives  law  as  to  those  facts. 

478. 

USAGE,  judicial  as  source  of  law  discussed,  420,  ff. 

UTILITARIAN, 

conception  of  law  not  the  author's,  80,  104. 
tends  to  excessive  state  interference,  115. 

VI CO,  with  Montesquieu  and  Herder,  develops  historical  conception 
of  law  which  supplants  natural  law,  118. 

VOLUNTARY  parts  are  not  the  whole  of  law.     Much  of  it  results 
from  objective  necessity,  116. 

WALLASCHEK'S  theory  that  law  is  a  uniformly  and  socially 
accepted  part  of  morals,  62,  ff. 

WELKER'S  definition  of  the  state,  337. 

WILL, 

of  free  individual  protected  by  law  furnishes  subjective  side  of 

it,  196. 
law  does  not  simply  protect  this  will.     It  is  something  more 

than  assistant  to  its  claims,  Id.,  ff. 
only  human  will  can  violate  right,  230. 

importance  of  question  whether  it  is  subject  to  causation,  302. 
the  problem  stated,  303. 
is  question  whether  the  will's  acts  are  caused,  not  whether 

itself  causes  phenomenon,  305. 
freedom  subject  to  law  of  causation  and  no  half  free  will  true 

solution,  307. 

FouilleVs  conception  of  half  free  will  a  mistake,  308. 
so  is  Reid's  idea  of  freedom  under  equal  motives,  309. 
complete  freedom  from  causation  seldom  now  asserted,  311. 
state's  authority  viewed  as  well  from  earliest  times,  345. 
generally  as  that  of  the  governing  bodies.     Seydel's  statement 

of  this,  Id. 

authority  not  so  explainable,  346. 

no  general  will  in  state's  action  and  often  none  at  all,  347. 
distinguished  from  authority,  349. 


524  INDEX 

WRITTEN  and  unwritten  law  a  useless  distinction,  404. 

WUNDT'S  definition  of  generalization  would  include  legal  concep- 
tions, 497 

ZACHARIA, 

able  to  cover  whole  field  of  law  in  his  day,  15. 
renounces  mechanical  theory  of  society  and   with  it  social 
contract  theory,  264. 

ZITELMANN,  criticised  for  denying  that  legal  rules  are  commands, 
169. 

ZITOVICH'S, 

modification  of  Ulpian's  distinction  not  admissible,  236. 
defines  private  law  as  that  of  distribution  of  things,  258. 
wrong  in  affirming  that  Russian  code  abrogates  pre-existing 
law,  470. 


14  DAY  USE 

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